Tuesday, August 11, 2009

among the roots and baby's breath, I covered us with silver leaves

The Lindens have released some new guidelines for listing items on XStreetSL.

This includes the new "Branding Guidelines", which I've included below:
Branding Guidelines

Branded items may be listed or sold only by the brand or intellectual property owner or its authorized agents. A "branded item" is an item that:

* contains or uses a brand name or logo;

* replicates or closely imitates the appearance of a real-world physical product of a brand owner (for example, items that replicate the appearance of brands of cars, jewelry, or shoes that are available in the real world);

* replicates or closely imitates the appearance of a celebrity, famous person, or fictional character from a copyrighted work (for example, avatars that replicate the appearance of movie stars or characters from a book, film, television program, or game); or

* replicates or uses an artistic or creative work that is the subject of copyright (for example, virtual artwork that replicates artwork available in the real world or a sound clip that includes part of a song recording).

"Brand names" include product names; service names; company names; organization names; trade names; designer names; trademarks; service marks; celebrity names; famous persons' names; the unique names of well-known books, films, television programs, games, and other works that are the subject of copyright; and the unique names of well-known fictional characters from copyrighted works.

Be careful not to make comparisons to a brand name or say that your item is "like," "inspired by," or "based on" a brand name because this can be misleading and can lead to intellectual property infringement.

When including pictures in your listings, use a picture that accurately represents your item so that buyers are not confused about what you're selling. Never copy or use someone else's pictures or logos without their permission.

If you are a brand or intellectual property owner or the authorized agent of one, consider making others aware of this information by including it in your listing.

If we receive a complaint from a brand or intellectual property owner, or if we believe in good faith that your listing violates these Branding Guidelines or intellectual property law, we reserve the right to remove your listing and content (including content in Second Life associated with the listing) and in severe or repeat cases revoke your Xstreet SL and Second Life privileges.

You are responsible for ensuring that your listings and content comply with applicable intellectual property laws. Please be aware that your compliance with these Branding Guidelines does not guarantee your compliance with all intellectual property laws. For general information about intellectual property and our intellectual property complaint procedures, please go here. If you need advice on intellectual property law, we suggest you contact an attorney.


This Is Acceptable:

* An item that uses a brand name (like Gucci®, Nike®, or Rolex®) can be listed only if the item is officially offered or authorized by the brand owner (for example, Gucci America, Inc., Nike, Inc., or Rolex Watch U.S.A., Inc.).

* An item that uses a celebrity or famous name (like Angelina Jolie or Barack Obama) can be listed only if the item is officially offered or authorized by the celebrity or famous person (for example, Angelina Jolie or Barack Obama).

* A virtual car that looks like a particular brand of cars (like Mercedes-Benz®) and uses the logo of the brand can be listed only if the virtual car is officially offered or authorized by the brand owner (for example, Daimler AG).

* An avatar that has the appearance of a fictional character from a copyrighted work (like Darth Vader or Wonder Woman) and uses the character name can be listed only if the avatar is officially offered or authorized by the intellectual property owner of the character (for example, Lucasfilm Entertainment Co. Ltd. or DC Comics).

* Virtual artwork that replicates copyrighted artwork that is available in the real world (like the artwork of Andy Warhol or M.C. Escher) can be listed only if the virtual artwork is officially offered or authorized by the intellectual property owner of the artwork (for example, The Andy Warhol Foundation for the Visual Arts, Inc. or The M.C. Escher Company B.V.).

This Is NOT Acceptable:

* A virtual sneaker named after a sneaker brand available in the real world (like Adidas® or Converse®) cannot be listed if the listing party is not the brand owner (for example, Adidas America, Inc. or Converse Inc.) or officially authorized by the brand owner.

* A virtual t-shirt with the logo of a real-world brand (like a Mickey Mouse® logo or an NFL® logo) cannot be listed if the listing party is not the brand owner (for example, Disney Enterprises, Inc. or the National Football League) or officially authorized by the brand owner.

* Virtual furniture with the distinctive appearance of a brand of furniture available in the real world (like the Eames® lounge chair and ottoman) cannot be listed if the listing party is not the brand owner (for example, Herman Miller, Inc.) or officially authorized by the brand owner.

* An avatar that has the appearance of a celebrity (for example, Elvis Presley or Marilyn Monroe) cannot be listed if the listing party is not the owner of the celebrity's right of publicity (or the right to use the celebrity's appearance, for example, Elvis Presley Enterprises, Inc. or Marilyn Monroe LLC) or officially authorized by the celebrity rights owner.

* Lists of unrelated brand names cannot be included in a listing or hidden by using white-on-white text, tiny fonts, special HTML code, or other means intended to circumvent the rules. (See also Keyword Spam below.)

* Misspelling brand names or adding, removing, or swapping some characters to try to circumvent the rules, for example, using the number "1" instead of the letter "I" or a dollar sign "$" instead of the letter "S," is not allowed.
This is what I want to know:

1. What happens to once-copyrighted items that are now in the public domain? Are they now also banned because someone once registered them for copyright?

2. What happens to the roleplay groups who play Jedi and Sith in the Tatooine sim? What happens to the roleplay groups of Time Lords and Gallifreyans who roleplay Dr. Who? What happens to the several different styles of StarGate systems, which may or may not be called StarGates? Many items they play with come off XStreetSL, like uniforms, TARDIS rooms, lightsabers...

3. What happens to Gor? TONS of Gorean items on XStreet, what happens to them?

My biggest question, though? Why in the hell are they doing this? Who's been telling them SL is in violation of copyright? (Note: I'm not saying that all of SL is free of these issues; I'm asking who complained.) Because this is so wide and sweeping a policy--and if it's implemented on XStreet, you can bet in less than a month it will show up on Second Life at large--it seems absolutely inconceiveable this wasn't a crackhead idea developed by the Lindens themselves.

EFF agrees that copyright in Second Life is a mess.

Abuse reports auto-reject reports of copyright infringement.

[19:02] Winter Ventura: I would really like a world in which the Lindens don't try to blow up the economy every thirty days

Yeah, really.

[19:08] Emilly Orr: They're doing everything they can to make their game fail.
[19:08] Winter Ventura: They're doing everything they can to chase away everyone who loves this game.

That too.

This? Is sheer insanity.

(I also had to grab this, while I was reading over the new guidelines:

Adult Guidelines

All uploaded or posted material falling under any of the following definitions of "Adult" content must be marked as such by checking the "Adult" checkbox in the Add or Update Item page for the material:

  • Patently offensive, obscene, vulgar, or profane language.
  • Visual depictions of death, dismemberment, or serious bodily injury.
  • Visual depictions of patently offensive sexual conduct including, but not limited to, sex acts between consenting parties and masturbation.
  • Visual depictions of nudity including, but not limited to, exposed pubic area, genitalia, buttocks, and female nipples.

However, "Adult" content does not include any of the following material, which is not allowed to be uploaded or posted on the Xstreet SL marketplace under any circumstances:

  • Explicit sexual material depicting minors (person(s) under the legal age, mental, or physical capacity to give consent);
  • Explicit sexual material involving any person(s) without the consent of all parties involved (i.e., rape).

The terms "party" and "person" as used above include avatars.

We may remove listings that contain "Adult" content if they are not marked as such.

So...let me get this straight: depictions of non-consensual sex are not allowed, ever. Okay. Depicting underage non-consensual sex are not allowed, ever. Okay.

I get both of those.

Depictions of consenting sex between adults; depictions of any level of nudity, INCLUDING rear nude shots where only the rear of the avatar is shown at ALL; THAT is "patently offensive".

They're going to ban all sexual content soon. I have this feeling. It's very nearly a prophetic vision. Wanna take bets on how soon I'm going to be right?


Dale Innis said...

Agree the copyright thing is going to be an incredible mess.

Doesn't look to me like it says that nudity is patently offensive; it just says that it's "Adult" and has to be marked that way. Patently offensive things are *also* "Adult" and have to be marked that way.

I think I'll take that bet about banning all sexual content soon. How many donuts? :)

Emilly Orr said...

No, you're right, but just sex--plain, vanilla, no bondage, no leather, could even be plain heterosexual *married* sex--that's considered "patently offensive"??

By whom??

And sure, I can take that bet, but if they're Winchell's or Dunkin' Donuts, well, they're going to be banned soon. :p

Sphynx Soleil said...

I really have to wonder if these people are on CRACK!

*sighs heavily*

Emilly Orr said...

My answer at this point would be...yes.

Anonymous said...

uhm, regarding the branding guidelines... no one had to complain. It's illegal. It's copyright infrigement. This comes as absolutely NO surprise to me at all, and I don't see that LL really has any choice but to make these guidelines. Does it suck? Sure.

Brigitta Myers

Emilly Orr said...

Which would have been better, though, Miss Myers? Enacting these policies from the beginning, for items in-world or out; or enacting these policies six months after buying out XStreet, a move many saw as largely self-serving, and significantly after creating Second Life itself, wherein many copyright-infringing items were created by Lindens and given out for free to new residents?

Mako Magellan said...

Linden Lab has shown signs, repeatedly, that when it started SL it had no idea how it was going to evolve. After all, there were few good precedents that could serve as warnings. Consequently, LL had to be the first to run into problems that were not foreseen and perhaps not foreseeable. Where this latest tightening regarding copyright, trade marks, etc, is coming from is clearly LL's legal department. If it is now found that someone has infringed, that 'someone' will be the resident, not LL, since it has expressly and punitively discouraged the practice. LL can then delete the resident and be in the clear. Not nice to residents, but not silly for LL, either. I am far from convinced LL's position is the best, but it is at least safe for LL.

It would have been ideal if the 'do's and don'ts' of SL were all laid out clearly at the start. However, LL was pursuing a different and possibly self-serving ideal of keeping its hands off and letting the world go where-ever it wanted. Unfortunately, the rest of the real world was less interested in global social experiments and more interested in defending its own intellectual property. Maybe signs should now be erected at orientation hubs 'Welcome to the real world!'

As for items for which copyright has expired, the answer is obviously that there is nothing wrong in copying them, by definition. However, as far as I know, copyright does not expire until 70 years after the death of the copyright holder (and 100 years in the USA). I may be wrong on these legal niceties, but that is my understanding. Needless to say, most copyrightable items that you come across in the course of an ordinary day are still protected under copyright, regardless of the public perception.

How will borderline cases be decided? In LL's favour, of course.

Will appeals be given a fair hearing? No, LL will not waste its time with this. LL is probably finding that it spends more hours on policy development and implementation than actual product enhancement these days. It could well already be placing an unsustainable load on company.

Emilly Orr said...

I think you might be wrong in two areas, Mr. Magellan, and here's why.

First, it may be growing paranoia, but I'm seeing this as yet another step down the road to the SL that M Linden wants most of all: a pure unsullied business platform, where all corporations have a footprint, and it is used for shareholder meetings, medical and educational training seminars, and corporate workshops. We--the residents of the grid, above and beyond all issues of copyright infringement--interfere with that vision. A safe, sane, and most importantly, financially sponsored SL, with all the ragged edges tucked away and nothing untoward happening even out of sight.

Second, Linden Labs is painting a rather vivid bullseye on their heads with this move--it will be well and good if every infringer of intellectual copyright steps forward and deletes non-authorized content, but, by owning XStreetSL outright, and by enforcing these policies in typical Linden Labs slapdash fashion--because you and I both know that is exactly what will happen--they will then be liable for everyone they do not track down. Yes, of course the residents are also liable, and subject to the exact strictures you mention. But Linden Labs is not off the hook--for corporations and private citizens can then bring suit for not stopping everyone else. As long as XStreetSL was owned by external business concerns, the Labs could legitimately shake their heads and say, How could we enforce that?

Now that they can, however, for all that the policies state the residents are enjoined to self-police--the Labs as a corporate body also open themselves to suits of infringement.

Is it long past time that copyright protection needs to be in place on SL? Likely, all things considered. Are the Labs, as per their usual, picking the most insanely inefficient method possible, with the greatest potential corporate harm to themselves, that they can? Absolutely.

Fuzzball Ortega said...

Seems I remember a conversation I had with my SLister about a guy who was selling avatars of DC heroes. They were so well made, looking like they did in the comics, that DC sent him a cease and desist letter. And yet, outfits of DC characters are sold, just not so fine in detail.

Paramount is aware of the Star Trek fan films that are being made all over the place, and I'm sure they're aware of the roleplaying in Second Life. As long as no actual money is being made (in other words, lindens made in world doesn't get converted to actual real world cash), they'll probably treat it as they do with the fan films. Just basically keep a close eye on their property.

I was told the BBC is aware of the presence of "Time Lords" in Second Life. Again, as long as no real world money is being made, they seem to be ok with it. But, nobody really roleplays the Doctor, at least as far as I know. They roleplay Time Lords from Gallifrey, and only one has ever hinted at knowing the Doctor, but never mentioning him by name. Now, the use of the Daleks, that may be a different kettle of fish, as the estate of Terry Nation holds the rights to that.

In the end, I think companies like DC, Paramount, and BBC may consider roleplaying in Second Life the same as "Fan Fiction", and be honest, it's what it is.

I understand what Linden Lab is doing, it was just something they couldn't forsee in the beginning.

Rhianon Jameson said...

I agree with Mr. Magellan and Mr. Ortega, that this seems like a reasonable effort on the part of a corporation to protect themselves against copyright and trademark infringement claims (which, in fairness, are required for the owners to maintain their rights). It seems that much of what we're seeing, particularly with M Linden in charge, is the evolution of Linden Lab from a free-wheeling group of geeks to a larger, more corporate group - complete with, yes, lawyers. Particularly with pioneering free-wheeling geeks, it's not surprising that they would fix problems as they arose in an infuriatingly ad hoc manner.

Miss Orr, you may be right that the ultimate aim of M and friends is to create a business-oriented virtual world, jettisoning along the way the role-players and casual social networkers that have made SL successful to date. As I've probably opined in these pages before, I can't see how that model works (at the very least, wouldn't there have to be an iron-clad way of showing the user's true identity, i.e., that M Linden = Mark Kingdom, before corporations could take it seriously?), but it doesn't mean the corporate gods think the same way. Nonetheless, both this episode, as well as the "adult" ghetto, seem like directives from the legal department. (The definition of "adult" content that you quoted above is an excellent example of legal-speak, a language that appear superficially close to English, but is entirely different in meaning.)

Emilly Orr said...

I tend to agree, though--legalese or not--I think it fosters more hostility, in the long run, than it saves legal headaches.

Am I suggesting they let things stand as they are? No, of course, they can't; it's far too late, and rather like locking the barn door eons after the cow has evolved opposable thumbs, but you're right, they have to do something. How'ver, they are setting themselves up in two distinct and disagreeable ways:

1. The "But we've always..." brigade. Which is starting to be felt, the legal impact of which will be nil (they can't, after all, sue because they made a Catwoman outfit and didn't ask), but the potential social backlash of which is huge--and yet more makers (and purchasers, and holders of premium accounts and land) will walk due to this.

2. The appointment of a brilliantly pink bunny--who's even named "Pink Linden"--to oversee this process. So far she's dodged and weaved with the best of them, been more perky than Torley, and managed to insult with a smile--all of which is guaranteed to circle us back to people leaving, or, if not outright leaving, telling everyone they know that SL is a bad investment.

Again, residents gone, creativity lost, money lost, future customers lost. This isn't good for them in the long run.

Dale Innis said...

Yeah, the phrase "Visual depictions of patently offensive sexual conduct including, but not limited to, sex acts between consenting parties and masturbation" is pretty bizarre. Are they really saying that *all* sex acts between consenting parties, and *all* masturbation, are "patently offensive"? Offensive to whom? *I'm* not offended by masturbation. :)

Is there a thread where they've given any clarification to that?

Aside from appointing someone less pink and more socially skilled to oversee the process, or getting a time machine and going back and enforcing copyright from the start, I'm not sure what I'd advise the Lab to do about copyright stuff at this point.

I don't think they're exposing themselves to significant liability by prohibiting copyright infringement and then (inevitably) policing that imperfectly: they can say "oh, sorry, you're right, that's against our rules but we hadn't noticed it, we'll take it down immediately", and your typical court is likely to find them blameless I think.