Lab Responds to Eros and Nomine
by Jessica Holyoke on 02/11/09 at 9:31 pm
Lab's Naked Trademarking and Copyright Preemption defenses explained
by Jessica Holyoke
On Friday, Linden Lab filed its response to the suit filed by Eros, LLC and Shannon Grei. Most of the responses are unsurprising as most answers admit or deny what the other side is saying. The affirmative defenses are also not that unusual except for naked trademarking and copyright preemption.
Naked trademarking is when a trademark owner loses certain rights to the trademark when they don't exercise control over the product when it is sub-licensed out. In Linden Lab's case, it would appear that they are saying that either Eros, Grei or a class member lost the right to enforce their trademark due to their not ensuring that sub-licensees made the same quality of product as they themselves produced. It would be interesting to see if they are exerting a defense if the products are sub-licensed through XStreetSL and that if they don't work as well, the sellers lost the right to enforce the contract.
Copyright preemption is a bit trickier. Preemption is a constitutional concept where the U.S. government wants their law to override a state's law. What the Lab would be arguing is that certain goals of the Copyright Act override the state law claims that the plaintiffs are bringing.
Next up are discovery motions to see what each side has for evidence. Protective orders have already been filed in order to protect the confidential information each side might have.
Alyx Stoklitsky
Nov 3rd, 2009
Waaaaah, I got tons of other people to make parts of my products, and I gave my shit out to tons of business partners and then they ran away did their own thing with it and it took me the better part of two years to notice!
I was lazy with my permission settings, wasn’t careful with who I trusted, and didn’t give two shits about the quality of anything that used my animations and scripts, so long as I got money!
Quick, blame Copybot for my own poor management choices!
janeforyou Barbara
Nov 3rd, 2009
So..if i make a unique item.. a item that are new and innovating then Linden Lab are the owner of it? Do thay got copyright on it?Can Linden Lab copy and sell it?
If i create i item in RL, a item i got copyrights on in RL and bring it to SL, do Linden Lab them “own” it?
SL are all of us that use SL…but we can NOT copy any item that others crated.
BamBam
Nov 3rd, 2009
I am probably wrong about these assumptions and I am sure my thoughts on this are elementary… But does the TOS for SL say that they own full rights to anything that is uploaded or created in the SL environment? You waive your rights to some degree by introducing your creation to SL? In a take down notice does the plaintiff have the burden of proof? If Eros is using SL as a platform to sell a product are they bound by the TOS even though they have a trademark? Is LL required by some pre existing law or agreement to change their software platform or TOS to better satisfy EROS wants or needs? If EROS knew of existing infringements and did not do anything about them doesn’t he waive his rights? Does SL log chats?
If all of these line up the way I am assuming, EROS does not look favored in this situation. You would think that with the degree of counsel EROS has that this would have been considered.
EROS… “Dirty Hands”? Hmmm, where have I heard something to that effect before? OH YA! By someone that was involved with SexGen awhile back. Did this blog report something about it at one time?
The outcome of all of this is going to be very interesting to watch.
Ranma Tardis
Nov 3rd, 2009
Still wonders if the lawsuits will be the end of Second life, also after the lawsuit as Linden Labs would decline to have the makers of these lawsuits as continued customers. They have no “right” to be Second Life customers.
Sinden Lucks
Nov 5th, 2009
Linden is going to mop the floor with thess fools. Linden has no legal responsibility to provide for a permissions system for data. If you don’t like it, leave. All Linden in my knowledge and experience is responsible to do is act on a take down notice and only “if” it can be proved whom actually committed the act of any content theft. Not provide a permissions system or any sort of DRM encryption that would further repulse those that are real content creators in SL. Why it is people have the notion that Linden is responsible for other peoples crimes and theft of content is beyond me. Linden won’t even do anything about the “real” scammers they so much love in SL that sends the money to the top. You know who I am talking about. The ones that own 100 sims, sell it, take it back, and resell it over and over. And guess who profits off the theft? That’s right.
LINDEN
Linden is however responsible to contact the individual and have the stolen content taken down if it can be proven without a doubt whom stole it.
That’s it. That is all. Linden is responsible for taking a look, seeing if it can be proven, and if so, asking for the content to be removed, or if they so choose, they can remove it themselves. And this might take weeks or months to sort. It has to be investigated. Linden “HAS” taken some steps to remove the content. However, what is being asked for is ludicrous. You people expect the “thieves” and “theft” to be removed. And that is not only not the job of Linden Lab, it’s not even possible. It doesn’t happen in the real world either as you ask. The cops “ALWAYS” show up “AFTER” the crime has been committed. Not before.
I take it that all the misinformed idiots pushing for CONTENT THEFT REMOVAL in SL have never once taken a look at what the laws actual state regarding Linden as a “host” and “network” provider. If Linden decided tomorrow that they were going to do away with the permissions system they have in place, faulty or not, they could. And there is nothing a single SL member would be able to do about it. While yes Linden did place a permissions system within the confines of their service, they are not in any way obligated to maintain it, fix it, or even have it. You have to PROVE LEGAL DMCA. And the law is quite clear as to what and what is not the responsibility of the service provider. Theft in SL is a joke. There is nothing in place to keep one from stealing anything at all. And why should there be? No website on the net has anything either. Any site can be stolen in 5sec or less.
I hope the nut gets what he deserves for suing Linden over his precious primage. And I hope Linden wipes the floor with his ass.
He claims to have a real business in SL, yet, he has absolutely no control over anything. Not the service, not the tools, nothing. That is not how a real business operates no matter what he thinks and no matter what he has made off of his works using the Linden tools.
I hope it costs mr SexGen(tm), and Mrs. Nomine dearly for being the idiots they are. I heard it for years in SL.
Protect my precious works, protect my prims, someone stole my prims, whats’ wrong with Linden, they should protect my works… Actually NO.
Laugh my ass off. Have you even noticed that Linden has not even provided for you to backup your precious data? Yeah, they are really concerned. And you are the gullible idiots who believe you have a business when you have no control over anything or any part of what happens on their service. That is how much control you have. Linden didn’t even supply you wonderful artists with a tool to back up your precious works with.
At0m0 Beerbaum
Nov 6th, 2009
HAHAHAHAHAHA.
FYI: you do not own what you create and keep in SL unless you export it off the grid after you finish it.
Then you own those copies, if those get copied off your machine, then you can claim theft.
LOL
Nov 6th, 2009
I must agree with Sinden Lucks, the residents have no controll over what they claim to have “Created” once they click the -=UPLOAD=- button and pay thier 10$L(2 cents). Creators are totally at the mercy of Linden lab, and they are laughing at you all the way to the bank. However if the lab wishes to keep making the helarious deposits they have been since 2003, then they hade better at least start to give the illusion of some form of protection for their residents so called work.
Sinden Lucks
Nov 6th, 2009
“However if the lab wishes to keep making the helarious deposits they have been since 2003, then they hade better at least start to give the illusion of some form of protection for their residents so called work.”
Actually, this was the whole problem that started the issues technically speaking with Linden’s platform and those that believe in the permissions system in place. They don’t understand. The continued promotion of the permissions system as viewed with the client, or, Modify, Copy, Transfer should not in fact be promoted as a true permissions system. Or or least not to the point that anyone would have the idea that this permissions system is a true and flawless “protection” for content. This is the whole issue in the first place. That and the wonderful content creators attitudes about their creations in the first place.
It would be better for them to actually grow up and get educated about technology and how low level systems work, rather than the continuation of being ignorant and passing their ignorance to on to others. You cannot be a teacher, if you’ve never been taught yourself. There are no permission based systems that cannot be cracked to my knowledge, and even encrypted file systems have been known to be cracked. If anyone wants security and protection for their content, unplug your computer and gently place it in the closet until you decide to take the time to learn about computing.
But be sure to password protect the bios and bury the password in schedule 80 pipe with two capped ends in 25feet of concrete. No one will be able to steal your prims or data, well, they might, but you’ve successfully outwitted at least 90 percent of those that would steal your precious prims and graphics.
What I write is no more absurd than the trojan infected windows boxes connecting to Second Life with the end users moaning and groaning about content theft.
Sinden Lucks
Nov 6th, 2009
One last comment and I’m through with saying anything about it.
I’m going to ask everyone who is viewing this a single question. You cannot look it up. If you do not know the answer to this question, you have no right whatsoever to approach Linden about their service or the faults in any part of what they claim is their service. If you cannot answer this single question, which you should know without a doubt in your mind, you have no rights whatsoever to be discussing content theft or anything else about computing for that matter.
Here is the question:
Without looking, what ports do you have open, and what services are running on those ports on the machine you are reading this from?
That is it. I won’t go into detail about what all else you should be knowing about the services and ports on your local machine.
If you don’t know, don’t get it, don’t understand, or cannot answer without looking… Then you have no rights whatsoever to be contacting Linden about content theft, or in any way approaching Linden about their services. Most cracking and hacking is done right where you sit. Not the server end. It’s most always the client end that poses the issues between a server client handshake and relationship. It is usually in conjunction with an I/O error. (idiot operator).
And the issue as you view it with content theft in SL is often no more than any other client or browser connecting to any other server. The information being transfered between client and server is no more, nor any less the eqiv of an unsecured connection and the downloading of of such material to be displayed on the viewer, browser, client.
If you don’t know what ports you have open, and what processes are running on each and every port on your local machine, the one you are sitting now in front of, and you cannot immediately spill off and tell me exactly what you have…. Then you know nothing, shouldn’t be discussing theft of any kind concerning the net. But I assure you, most likely, if you don’t know, then someone else does know what you have open and what services you have running. In fact, they most likely have moved in and joined you.