Tuesday, May 5, 2009

and so we made our way with the mistake we made

So the Taser case hit the New World Notes this morning.

Reading through the case file (that's a .pdf file) is eye-opening, for more than one reason. First, I had (what I thought was) reliable information that Oni Horan, owner/designer of Necronom, had made something called the "Taser Collar"--and that had started off the lawsuit, when Taser found out.

According to Kanomi Pikajuna, this is not so, which is the first confusing point.

Two sections from the filing:

18. Upon information and belief, all of the Defendents that sell virtual weaponry like Plaintiff's real ones, under the mark TASER for use in the Second Life programs and grids, also sell adult-only explicit images and scenes, attached within Exhibit 2, thus attaching such content to the TASER mark. See Exhibits 2 and 3.

So Taser first is blaming Linden Labs directly, plus all named defendants (some of whom have been fired/voluntarily left, so are no longer Lindens). That's odd enough.

19. Upon information and belief, all of the Defendants that sell virtual weaponry like Plaintiff's real ones, under the mark TASER for use in the Second Life programs and grids, also sell unlawful drug materials, see reference to "crack den" in Exhibit 3, page 9, thus attaching such content to the TASER mark.

But here's the fun bit: they're also blaming Linden Labs directly, plus all named defendants, for the selling of illegal drugs.

The. Hell. I mean seriously, the hell? LL have made their share of mistakes, but--selling drugs? Drug dealers they're not.

This passage from section 37 is particularly telling:

37. Upon information and belief, the Defendants communicated amongst themselves and others,via mail, email, telephone, and/or through other interstate and intrastate mediums, so as to plan to nationally sell and distribute their applications directly into this district; and to pass-off on TII's TASER brand weaponry as their own via the web. Upon information and belief, the Defendants' actions to pass off TASER weaponry as their own, were false, fraudulent, or to induce fraud within consumers, which caused harm to Plaintiff by associating such weaponry with adult-oriented, nearly or actually pornographic images and references to illegal "crack den" sold on the same sites..."

All right. Everyone who's anyone knows that Taser International is sue-happy. They've done this over and over since formation of their product and the company. But this is unusual on a few fronts. Essentially, what they're saying is:

1. We found Linden Labs selling our product virtually; we want them to stop.
2. We found Linden Labs associating our product with sex; we want them to stop.
3. We found Linden Labs associating our product with drugs; we want them to stop.

Which is really, really odd, because--virtual drugs count now? Virtual sex does, sure, but--is it just the Crack Den as a name they're objecting to, or the fact that someone in the Crack Den is hawking virtual drugs along with virtual Tasers? What's really going on?

Man, I'm asking that a lot these days.

And it gets worse--at the bottom of page 25 of the complaint from Taser International? They're hitting the Labs with a cease-and-desist under RICO provisions, as well.

Now we're treading in serious legal waters. People have gone to jail under RICO provisions. Assets have been widely seized and held for the duration of trials. Employees have lost access to payroll, or equipment used for corporate gain, or both--in essence, no one gets paid, no one can work on-site--which is severe indeed.

More telling, though, is that banks refuse to loan funds to companies convicted of, or under indictments for, RICO offenses. Which means potentially Linden Labs could not borrow funds for anything to do with Second Life.

This? Could be huge.

(I will say one more thing: read through the last few entries on Kanomi's blog. They're priceless, especially the "Talk with A Linden" one.)


Sphynx Soleil said...

The world has officially lost it's f***** mind...

Emilly Orr said...

I'd tend to agree.

Taser is litigious as hell, they always have been. But hitting the Lindens, directly, by corporation and by individual name...I mean, yeah, daunting attack, but seriously--RICO? For virtual toys? RICO applies to organized crime, to interstate gambling, to forced monopolies...Linden Labs? Doesn't fit under RICO...

Sphynx Soleil said...

The judges - if they have any sense - should agree with that if it ever goes to court. Fortunately they *tend* to be a bit more conservative where RICO is applied.

Heh. Amusingly, if they're being that clueless with the lawsuit? Means that the people doing the suing likely aren't residents, and the LL TOS might not be getting in their way.

Emilly Orr said...

Um...the people suing LL over this?

Are Taser International Incorporated. The people who invented the taser gun.

They're not residents in the least; they apparently do random Google searches for mention of their products, and, over the years they've sued everyone who comes out with more hits than the corporate site.

Sphynx Soleil said...

Ahhh, is THAT why they've been picking people... Sheesh, for the money spend on lawsuits, they could hire a good SEO dude instead. Pffft.

(Yes, I did understand it was TII, I've just been a little slow chunking the thought processes lately...)

Emilly Orr said...

*hugs you*

Is okay, just wasn't sure you got that.

And yeah, you're right. It's likely not the only reason they sue everyone, but it's one of the big ones. Maybe they just really like making lawyers happy.

Winter Ventura said...

Taser has, for the moment at least, dropped their case.


Emilly Orr said...

And that is just fascinating. Before Linden Labs even formally replied, pro or con, to the charges.

And dismissed without prejudice, so they can opt to sue again. Wild.

Kanomi said...

Thanks for the kind words and the link, Emmily! :)

To clarify, I don't know what prompted Taser to file the suit. I just wanted to say it wasn't a suit against the Crack Den game itself.

Emilly Orr said...

Oh sure!

And we have no surety of why, precisely, they chose to sue the Labs--they have in the past Googled for information under "taser" and "taser gun" on searches, and have filed based on those search results (and there is part of the court filing that mentions a similar search conducted).

I do find it interesting that TII didn't sue the makers of the virtual tasers, but rather, the owners of the 'game' in which they play--that, and targeting the former owner of XStreet, tells me someone might have been interested in establishing precedent.

How scared would LL be--would any MMO be (though SL is not *quite* an MMO)--if the company behind the game could be held legally liable for resident actions? It's rather like holding the governer of California responsible for that one creepy leather shop in San Mateo, when the governer was not a hands-on employee or owner of the company--but if they find a way to establish virtual responsibility...well, it's a whole new game, so to speak.

turnerBroadcasting said...

Again, the design issue that I have been talking about with SL is coming up , this time biting the lab.

Here's the issue. Again. Linden has chose a social and legal infrastructure that is artificial.

As a result, there can be no legal recourse except back to Linden.

However, this is a space in which if the residents were self determined and it were a separate space (perhaps - with democratically appointed leaders, say... for example who have alot of activist and blogging experience... ahemm... ) ... then the virtual world entity could easily self organize for protection.

For one, blogging about whats going on right now - could save the issue. TASER would be embarassed by the litigiousness of this claim. Chasing down cartoons .Chasing butterflies. Paranoia is the last thing they want to project, as part of their brand.

But as a blogger on one of the biggest sites on the net - I say.
No fucking way.

Linden has to relent. They have to allow the laws of the space to be determined by the residents. Not the lab.

If the don't they will

a) lose all the people who are there to help heal or play from their own effed up legal system

b) gain all the pain they're going to get , such as this case, for not having anywhere they can point the finger of blame or pass the buck...

c) set a very. very bad legal precedent for virtual worlds to come.

c - is the most important issue and the reason why I and many of my friends are going to stay away from SL and , honestly - not look twice if it folds.

If SL sets as a precedent for virtual worlds -w ere effectively a form of technical despotism is the legal structure you're supposed to accept in a world that you're supposed to create.

AND. Where the rules that you would follow are the rules that someone else decides upon.

Then. Stay in real life.
Less lag.

Magdalena Kamenev said...

I'm glad this has been rendered moot. Mind if I toss around some trademark law to separate the legally-viable claims from the cracktastic ones? Because I can see this sort of thing happening again.

The RICO claim. Looks largely cracktastic. Private individuals/companies can sue under RICO on a claim that a set of companies/individuals are acting illegally and in concert against the complainant. But still, cracktastic, IMHO.

The trademark law stuff ... interesting kettle of fish, legally. Because trademark law not only protects against infringement (I take your trademark to use on my goods so that consumers are likely to mistake my goods as yours), but also it protects against trademark dilution. A trademark may be diluted if it is used generically or if it is tarnished by being used in connection with unwholesome, morally dubious or illegal activities. (my summation). Such as a tool popular with law enforcement being sold adjacent to pornographic materials or used in unsavory depictions of illegal drug use. And yes, companies have sued and won against defendants using trademarks, even in artistic parodies, in pornographic or offensive usages.

As for why they are trying to get LL on the hook for what avs are selling/making/doing in-world, there are two big reasons: 1) deep pockets (I know, doh, but should be said; 2) the words "contributory infringement" doesn't jump out at me in my scanning of the pdf, but that does seem to be the most relevant legal theory. LL did not actively or directly "infringe" the mark, but a company that provides goods/services to direct infringers may be held liable to "contributing" to the infringement. Somewhat similar to the way Grokster was held to have contributorily infringed music copyrights, even though the company itself did not upload or store music files itself.

Did the filing make Taser look silly and humourless and without a clue? Yes. Did they have a cognizable legal argument? Probably.

Just my $0.02, IMHO, YMMV, and I'm really NAL (yet, anyway).

Emilly Orr said...

Turner: lost your post in a bunch of other stuph that hit my inbox at once.

At this point, you know what we know, and if you don't--Taser dropped the case. The Labs aren't relenting though, at least not yet, on anything--and they're sounding pretty ridiculous on their definitions, but they're still holding to them. So it's just gonna get uglier before it gets better, and that's an IF it gets better.

Miss Kamenev: Yes, but I have the strong feeling you will be a lawyer someday, and you're not wrong--the RICO claims were patently ridiculous, but contributory infringement, and/or trademark dilution--what they started demi-protecting last year with the "you're not allowed to" blog posts regarding the eye-in-hand, SL and Second Life as terms.

I am wondering why they dropped the case, actually--because for me it's one of two things: either they just wanted the press, to say they didn't authorize this, or they dropped that case to work on a better-worded brief, watch SL and XStreetSL listings, and will hit them in a few months.

I'm hoping it's the former case. But...who knows?