Stroker Serpentine (Kevin Alderman) has brought a class action lawsuit against Linden Lab, claiming that the SexGen line of products have been “counterfeited, cloned, and ripped off countless times by a multitude of Second Life residents”. Alderman is joined in the suit by Shannon Grei who makes clothing for the virtual world.
The lawsuit hinges on whether Linden Lab is responsible for protecting the content of Second Life’s resident creators. According to a report by MediaPost:
Alderman and Grei argue in their court papers that Linden Labs should be held responsible for the knock-offs because the site allegedly allows users to upload fakes and sell them for Linden currency, and facilitates the exchange of Linden dollars for U.S. currency.
“Linden Lab has created in Second Life a system in which it directly engages in piracy, actively allows its users to engage in piracy by providing the tools for it, and by which it profits from its own piracy and the piracy of its users,” the lawsuit alleges. Alderman also alleges that some of the fakes are defective, which damages his goodwill.
The lawsuit thus covers a lot of ground. It would seem to argue that the Lab has a legal obligation to block the tools that allow piracy (copybot or simbot, for example) and that DMCA filings are insufficient forms of protection for content creators.
It would be nice to think that a lawsuit like this could have its day in court. The legal questions around the value of virtual goods, whether they are ‘property’ in the true sense of the word, the obligations of platform owners for the protection of those goods, and the boundaries provided by EULAs, terms of service and DMCA mechanisms are all issues that, some day at least, need to be put to….well, put to bed.
But the lawsuit puts the Lab in a bind. On the one hand, they may want to argue that they are the equivalent of an ISP, and that while their platform confers rights on individuals “posting” content, their obligations end at hosting and any additional protections are not obligatory. On the other hand, however, the Lab has business and policy issues at play: any sense that they are not serious about protecting virtual goods could be construed by current content creators as reason enough to give up hope that the Lab takes content protection seriously. But perhaps more strategically, it raises questions about whether ‘real world brands’ should ever return to a platform on which knock-offs and copybot can dilute their brand.
My guess is that the Lab settles out of court. Whether Alderman rejects an out-of-court settlement is another matter: there may be more than money at play here, an beyond just proving a point, this case has the opportunity to establish a principle.
(A full copy of the suit is available here).
On first glance I think you’re right, they have to settle out of court. Surely if LL make any policy or technological changes in the wake of this legal action wouldn’t it imply (or be assumed to imply) that they were indeed previously negligent in protecting content?
It feels like this is potentially one of those landmarks along the way that determine the future course of SL and virtual worlds but it’s actually hard to see what good can come of it for creators, whatever Stroker Serpentine might say it still seems self-serving. If LL cannot appear to be admitting liability then we could find them moving to reduce their responsibilities and their content protection instead of strengthening them.
Jovin – as I say, rock and a hard place. The Lab had its content protection road map, which was useful to a degree. I can’t help thinking that they’ll have ‘big brands’ in mind as they craft their response – but maybe I’m delusional in thinking that they have the intent of eventually coaxing the Nike’s of the world back to SL – another ‘fail’ on the consumer brands front would forever put SL in a niche, at least as far as being a ‘consumer’ platform….and by the way, don’t get me wrong, I’m not advocating for it, just hypothesizing what might be going through the Lab’s mind. (Or hive).
I’m not sure about the need to indulge the big brands right now, there’s another way to attract them – fill SL up with users. If SL is full of people then the brands will want to come and make use of it. If Nike make a virtual pair of their latest sneakers available and they get passed around from Resident to Resident does it matter? Isn’t that just a nice piece of viral marketing?
It only really matters if the brands want to monetize their content in SL or prevent others from doing that. There was talk of introducing an extension to the perm’s system that would prevent the commercial distribution of freebies, user-after-next perm’s ostensibly, which sounded promising. But in light of this legal action I’d worry that those proposals are exactly the kind of thing that gets shelved – far easier for LL to wash their hands of any content protection altogether.
I’m not going to bother looking up if SexGen is a copyrighted name. It would be futile for anyone to file suit without first establishing by rule of law, the ownership and rights of their property, be it physical or intellectual. So for argument’s sake, I’m going to assume Stroker has this part covered.
The next bit of gory detail that matters is the Terms of Service. This legal agreement binds anyone and everyone that uses SL to LL’s terms. The most damning part of the ToS to Stroker is found right here…
“You further agree that you will not make any claims against Linden Lab or against other users of the Service based on any allegations that any activities by either of the foregoing within the Service infringe your (or anyone else’s) patent rights.”
Stroker’s suit automatically makes him non-compliant with the ToS. There’s no reason that LL would/should settle out of court.
Perhaps the biggest risk to Stroker and others thinking to try and hold LL accountable for copyright infringement is this nice little tid-bit from the ToS under property and copyrights…
“the perpetual and irrevocable right to delete any or all of your Content from Linden Lab’s servers and from the Service, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to you or any other party”
I don’t wish this upon Stroker, but LL has within its abilities, based on the ToS (a contract in agreement between LL and Stroker), to delete any and all of Stroker’s content. Now that’s leverage!
Come on Dusan, you could have done a little more research on this first before putting out the article.
What is this, the Fox News network?
Coyle, your post makes several common mistakes about the laws that protect various types of rights.
You don’t copyright names, you TRADEMARK them. The laws around copyright and trademark are as different as night and day (copyright protects your work, trademark protects consumers understanding of who backs a product).
Making a claim on fake copys being made is a COPYRIGHT claim, not a patent claim. Thus the TOS is not violated.
Your final point about LL having the power to delete all of his works is a potential, but realize the backlash that such an act would create among other content creators. Yes, they reserve the right, but to use it would be a PR disaster and they might as well shutter the service if they were to do so.
Nevertheless, mocking Dusan based on your mistaken understanding of US law (which is what applies here) it probably poor form if the mocking comes after two major errors and an unlikely potential.
http://www.uspto.gov/web/offices/ac/ahrpa/opa/museum/1intell.htm is a good summary for understanding the various rights that are available. Note that each has its own body of law and that taking a legal idea from one and attempting to apply it to another form usually will fail completely as the mechanisms, requirements, rights, responsibilities and case law all vary from form to form.
I wish Kevin all the best with his suit and the class action. This has been – coming.
I have just experienced a four week period of filing multiple DMCAs for work by myself and the project (and IP) I own of Scope Cleaver’s that were mass ripped. The Bartlett House by Scope being a one of a kind build hosted in Second Life – used by Linden Lab for various PR elements including the new website. My case was copyright versus our RL trademark.
We are now dealing with the next step of federal court for a false counterfiling from the defendant and throughout? Linden Lab hindered all investigations, providing of information and acting in a swift manner. At one point declaring legal action would be required to be provided the SL name of the counterfiler (yes SL not RL name) as the DMCAs covered multiple accounts.
I am a full service developer and struggled to get lucid, timely and accurate assistance from Linden Lab. I hate to think how a new creator has any chance using Second Life.
The TOS can be overridden in a court. I have long suspected the Linden TOS would be on shaky ground if challenged.
Best wishes to Kevin and the other filers. I hope you reach the conclusion you deserve. As a creator, something has to give and soon.
Charlotte
@Coyle – My understanding is that one’s claim would have to reach a certain financial amount, and comply with certain restrictions, before seeking litigation. Perhaps Stroker’s business is just big enough to do that?
There are also certain liabilities and torts that cannot be signed away, even if all parties are signatory to agreements that says that they are. In those cases a party is almost always free to seek relief without penalty or contractual restriction.
@John, thank you for pointing out my misuse of copyright vs trademark. I have made those mental notes. The terms are certainly not synonymous.
So as I once again reviewed the ToS for “copyright”, I came upon the following in section 3.2 which deals with license rights, forbearances and indemnification, to Linden Lab with regard to copyright and intellectual property rights:
“you are solely responsible for, and Linden Lab will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Service, including without limitation any legal consequences relating to your intellectual property rights”
In that passage, does it not seem that Stroker has filed a case which can not be won? Other blogs reviewing this suit have stated that the case is based on the Lab’s ineffective actions to protect IP rights. But while the Lab has made some public efforts to show its support, it does seem that the ToS state the Lab’s overall responsibility in this matter.
The deletion of Stroker’s content would certainly raise tempers, generate lots of opportunities for bloggers, and set a precedent for how the Lab will respond to such actions against them. Do I think it will come to this? No, I do not, but such is the power Linden Lab has that every content creator has agreed to operate under by our use of Second Life. For SL users, it might be a “PR disaster”, but for unaffected parties, soon-to-be Second Life registrations, and the outside business world looking in, it would be lost in the day’s headlines.
What is the culture within the Lab that makes these decisions? Is the ToS document enforced when the actions of its Users affects the financial well-being of the company? Has Stroker et al attempted already to partner with the Lab to improve the state of affairs rather than force the hand that feeds him? Is this his last straw?
kinda puts a new light on your buyout of a MESH MESS to dont it.? Since most model service communities are full of non licensed IP violations.
having you cake and eating it too. its a cautionary childs tale, NOT a sustainable buisness plan.
web2.0 fianlly gets real.. enough virtuality .
a settlement would be a sham…
the main problem in the DCMA and it needs to be repealed and redone….
its bad for content owners and users…
Are you serious Coyle? If the Lab went out and deleted all of Stroker’s business objects, this place would riot like you would never see before.
The point being if it happens once it can happen again, and that’s why it won’t. SL would burn to the ground if the Lab started deleting people’s rightful original content.
@Metacam I really think the rioters you speak of would be but a very small number of the 55,000 – 70,000 people logged into SL at any one time during the day. The remaining Users that come and go would care even less or never be the wiser. Those that purchased Stroker’s objects and now have them deleted from inventory might be upset, sure, but an official post from the Lab explaining why the objects were deleted would quickly make Stroker a martyr to few and a menace to many.
We’d all like to think that deletion would never happen, and that we have some implicit right to all of our content within SL. But SL sits on a private network, resources owned by a private company, who sets rules for usage of their private intellectual property. You, me, and many others must realize we’ve created our own businesses in an environment owned, managed, maintained, and “controlled” by someone else–the Lab. Their willingness to work with content creators on IP protection is an extension of the proverbial olive branch, but in no way is it a guarantee they will fight for you to the death.
You may riot, but after you’ve burned down your home town, where do you run to? Martyr or menace is for our small SL community to decide as individuals. The rest of the world will keep spinning.
I think it is great that Stroker made enough revenue from the sale of pixel sex gadgets, that he can now take LL to court over loss of revenue. This is often the case in publicized IP battles, only the wealthy creators can hold the sword. Lars Ulrich would often be seen on Tv sat in his LA mansion complaining of Napster and its ilk.
I think Stroker should be grateful that he has made it big in SL, not many folk can say the same. Simply making a SL creation, regardless of quality and time spent, does not often make an individual wealthy. How much fun did Stroker have in Poser or QAvimator producing those sex anims? I guess quite a bit. Also being as the sex beds relied on a set of scripts to make them functional, how did these pirate versions get made? I am well aware anims can be ripped from the viewer, but the pirater must have taken some amount of time to recreate the scripts and the system.
This is landmark stuff for internet IP protection, and in some ways I wish Stroker all the best. Nobody likes to be ripped off. I just feel Stroker forgets how much LL has given him. All those sex games, and the chance to be a virtual big man. Spare a thought for the enabler, rather than stabbing them in the ribs. None of this will help the little guy, who makes great items in SL and waits for the day he/she will be rich too. This is just Stroker, um, stroking his own rhubarb.
Oh and forget Nike, Coca Cola etc. They make real stuff in the real world, last time I looked you cannot copy bot a fizzy drink. Different gig for a different consumer. In fact in virtual worlds nothing is actually consumed, just owned. Kinda re-writes the whole trade book. Will IP replace wood, iron, fuel and food as the next resource of scarcety..not so sure it will. Imagine if all the impoverished nations in the globe started making pixelized sex gadgets,would they all be able to eat again?
Protected by DRM and safe in the knowledge no-one will copybot their incomes away.
monk,
looks like you missed the 20th century.:)
IP and virtualization WERE the dominant economy of the later 20th century.(post ww2)
distribution and access to media tools, thats the change that occured in the begining of the 21st century.
that change and the wild west financial acts around it, are the core of the worlds poverty and the growing inequity between the 10 percent that own/control the worlds wealth and the 90% that are equalizing out at the bottom.
dont believe for a moment that tech will make us all reborn into a singularity of whatever koolaid you read about.
SL is just a limited tech simulation/virtualization of the type of economy and controls of others economic fates that just dont work without fair law as check and balancer.
nothing surprising , only it took 6 years for fantasy to be shown for what again it always is.
and frankly, Stroker owes LL nothing. they made no millions EITHER untill they offered him and others a system to ALSO make millions.
the inabilty for todays mass to see whats entertianment product and whats not is the 21st centuries major dilema, since it will decide if the machine serves us, or we will serve it.
- thats not my quote- Joseph Campbell
Coyle,
(1) “You further agree that you will not make any claims against Linden Lab or against other users of the Service based on any allegations that any activities by either of the foregoing within the Service infringe your (or anyone else’s) patent rights.”
Umm, no. Companies that use contracts of adhesion invariably use boilerplate language like this, despite knowing that it is essentially unenforceable. Before Bragg v Linden Lab was settled, many commentators made similar claims about that case. The reality is the the Bragg court made interlocutory orders before the parties settled. LL made claims under the TOS. The court rejected each and every one of those claims. While those orders are not precedential, it’s hard to imagine how any other court would take a different approach.
(2) “the perpetual and irrevocable right to delete any or all of your Content from Linden Lab’s servers and from the Service, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to you or any other party”
In some ways you are more in error here than in your first argument. Penalising a plaintiff for bringing a case has a short name at common law. It is known as contempt of court and any defendant who attempted it would be acting exceedingly foolishly. LL took no such actions while Bragg was before the courts. They will not do so in this case either.
The TOS has to be read with the applicable law, not on its own, despite its rather clumsy attempt to exclude that law. The Bragg settlement specifically excluded any punitive action against the plaintiff by LL, and indeed restored the plaintiff to the position he had in SL before he was banned by the company. I somehow doubt the plaintiffs in this case, who have serious money at stake, will settle on less favourable terms.
I suspect this case will run through exactly the same process as Bragg, with the significant difference that by suing in a California court the plaintiffs have avoided the jurisdiction arguments raised by LL in that case. The defendants will cite the TOS. The plaintiffs will cite various authorities on how contracts of adhesion apply at law, and how the doctrine of unconscionability applies to such contracts. A number of issues will go to interlocutory judgement. After losing those issues LL will settle. At no stage will LL take any punitive action against the plaintiffs.
I just do not feel LL is entirely to blame here. I think if stroker is loosing revenue to what he believes is copyright/patent/ip theft, he should chase the perpertrator of the crime, i.e. the thieves. Maybe SL users should form a large group of fraud squad agents, and spend a small amount of voluntary time in catching the crooks. I dont feel LL should have to foot the bill, technically or with man hours. I seriously believe LL should offer much more advice, and maybe offer links to suitable agencies/lawyers if any such exist, I mean at least educate creators on the ways they can protect themselves.
Truly the only way it seems LL could protect themselves is by not allowing non-payment on file members to sell items. This seems a bit bible revalations prophecy to me..ye shall not buy or sell if ye has not the mark..or some such. That does not seem good to me. Free trade must be important in my opinion.
If LL payoff stroker as the above poster suggests is likely, they are surely doomed. Every creator in the system will ask for recompense, as far as I can tell Stroker has no prima facie evidence to prove he has actually lost anything.
Cube : I really agree with all that you say. I dont buy the singularity theory either. I get upset about the wealth distribution thing too, and i think it tarnishes my world view. I really believe we should not be slaves to the machine.
Alberik is right, Bragg established that the TOS of LL is unconscionable, a contract of adhesion. I don’t know if they’ll have to go over that again, however, because Bragg resulted in a settlement.
I do hope Stroker is able to hang on and not settle, as the purpose for him doesn’t appear to be getting some kind of damages, but to try to make a landmark case, it’s “impact litigation” with a potential class that could really turn around the technocommunist Internet made thus far and change the course of history so that people can break out of the collective farm of “we pretend to work and they pretend to pay us”.
If all we got out of this exercise was a ruling that put these game companies on the run with their unconscionable TOS that grab everybody’s loot, that would be progress.
You didn’t mention the other argument, Dusan, which is that they can’t invoke common carrier and safe harbour doctrine if they control content to the extent they do by making and inserting content and managing relations between customers and such, it’s such an elaborate system they are like a company town.
I think the idea of requiring payment verification for merchants is excellent and it absolutely would not offend with free trade in any way.
The principle of free trade requires equality of competition. There is none between a content creator and a content thief. The creator does the work and the thief gets the profit. In the rare and infrequent case that LL bestir themselves enough to sanction a thief there is no sanction at all because the thief can return 60 seconds later with a new identity, a clean slate and the same inventory of stolen goods.
A system of vigilante justice is not the solution. Vigilantism would not catch the right people and there is no reason to think a thief caught by vigilantes would be any less likely to be back in 60 seconds than a thief caught by LL. It is the system of rules that LL has created that causes this problem and that is what gives rise to LL’s liability in this case.
Let us imagine the mythical republic of Philipopolis. The Philipopolitan parliament, being good libertarians, decree that no-one may lock their houses. Many burglaries follow. That may seem a ridiculous example, but it is no less ridiculous than the system of rules that LL has legislated in Second Life or the argument that LL bear no responsibility for the rules they have decreed.
there is no FREE trade in a COMPANY town ( as prok puts it) Monk.
the basic web 2.0 “software service” TOS is worthless in a US court of law, THIS is the fact that the software owners don’t want you to know. They use the common ignorance most have about the individual/consumer rights you (still)have to promote their power plays and economic takeover of the IP economy.