Tuesday, October 13, 2009

and through it all, the rise and fall, the bodies in the streets

I knew I was running the risk of my IMs capping, due to how many notices some of my groups are sending out currently--it is October, after all, time of hunts and giveaways--so I logged in a bit early. Perhaps it was a good thing I did, because I had the time to speak with kagabandurriasconcuerdas Flanigan, the owner of Boxed Heroes.

As it turns out, I was wrong on a few points; those points I'm going to correct here, and link back to the original post.

To start off with, Boxed Heroes never received any DMCA filing. NOT ONE. All they received was a single anonymous IM--anonymous in terms of, they had no verification who the man really was, or if he really worked for DC/TimeWarner--that said he worked for DC, and he was going to contact the Labs and say that Boxed Heroes was in violation.

The decision was made to pull all the avatars for sale, and look into things. Mr. Flanigan kept paying tier on his lands, and his stores, none of them went away; but at the end of the six-month period of thinking things over, they contacted Linden Labs for more information.

Kona Linden sent this notecard back to him:

In Second Life, we all encourage creators to use their imagination to create content. Some create things that are inspired by real life objects, like cars or jewelry. Now that Second Life is getting larger and residents are exercising their intellectual property (IP) rights, usage of copyrighted/trademarked material has become more of an issue in Second Life.

In general, the use of tradmarked/copyrighted material is frowned upon in Second Life, unless of course you own the rights to the material. To better understand your intellectual property rights, visit the Second Life website and look up our information regarding TOS and DMCA information (http://secondlife.com/corporate/dmca.php). Keep in mind that the Digital Millenium Copyright Act is a federal law and companies/entities can take actual legal action against a SL resident directly. Linden Lab is merely obligated to "cease & desist", meaning we will warn a resident and take the appropriate action, pending on the nature of the violation. Here are some general guidelines:

TRADEMARKED MATERIAL

All Lindens are required to remove all content utlizing trademarked materials, with or without notice. This includes all RL corporate logos and name brands. Understand that certain objects to look like a RL item is not the same and utilizing trademarked names or logos. So one can create a car in SL, make it look like a Mercedes Benz SL, but cannot use the name "Mercedes Benz SL" in it's description or textures, nor can one use their trademarked emblems or logos. The mere shape of the car that was created is NOT trademarked (but making shapes to replicate actual trademarked logos is NOT acceptable). Use of designer logos like those of Gucci, Nike, Louis Vuiton...etc. are also not acceptable. Any resident may file an abuse report if they see any other resident violating trademarked material usage on in-world content in SL.

US Patent & Trademark Homepage: http://www.uspto.gov/index.html

***Use the Search tool under Trademarks on the left navigation when you go to US Patent & Trademark Homepage.
- Use the "New User Form Search (Basic)"
- Under View Search History, select "Plural & Singular " & "Live" radio bottons
- Enter the name of the business in question (ie. Nike)
- Press "Submit Query"

COPYRIGHTED MATERIAL

Using copyrighted materials, like trademarked materials, is also discouraged. Lindens will not remove copyrighted material upon seeing the items in-world unless the owner of the copyrighted material notifies Linden Lab per the DMCA protocols noted on our website. If the material is proved to be copyrighted, Linden Lab can and will remove the violating materials in-world and the concerned residents will be notified.

Repeated violations by a resident can result in one's account being placed on probation or permanently banned.

Bottomline, we encourage all our residents to be as original as possible when creating their content. If you want to exercise your IP rights, it's a conflict of interest if you're utilizing materials (textures in particular) that you don't own the rights to. You CAN create parodies, like instead of "Gucci purses", you can make "PUCCI" purses...but it would be best that you use your own branding and design your own logos. So help us protect your rights by also respecting the rights of the rightful owners of copyrighted/trademarked materials =)

Other sites of interest:
http://www.hasbro.com/home/copyright.html

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IVORY TOWER LIBRARY OF PRIMATIVES Learning center on how to build in SL!


Words fail again, but just in short--according to what Kona Linden sent them, this backwash of an 'official notecard', rife with spelling errors and misinformation, is what the Labs send people who want to know how to deal with copyright issues in world! LINDEN LABS sent this to Boxed Heroes! By the provisions set out in that document--and I use the term very loosely--Mr. Flanigan is completely in the right! He's not in violation of copyright! Because the Labs have told him HE CAN COPY ANYTHING HE WANTS...as long as he doesn't give them the COPYRIGHTED NAMES!

And why the hell did Kona link in the Hasbro list?? What relevance does that have? Telling us that as long as we mention in a notecard within the product package that an item we're reproducing has a copyright date to another company, we'd be FINE to reproduce it on the grid?!?

This is the kind of thinking we're given, at the end of the day on the grid--some likely lower-level Linden, who's never even thought through running what xie writes out in a notecard through even a simple spellcheck program, giving out inaccurate and misleading information to merchants on the grid. The irony is a rich deep vein at this point--because it's not just the Step Up! kiosk in Boxed Heroes anymore. It's Boxed Heroes, with all that they do, being legally able to exist according to the Lindens, because they changed the avatar names. It's any business who chooses to change the name of an otherwise recognizable RL institution, piece of furniture, outfit, avatar. At this point, the wide ironic vein runs straight through the Linden Labs offices in San Francisco. Likely it's tapped for morning coffee, considering what Kona Linden has been telling people.

[15:21] Emilly Orr: Understand, it will likely become another rant, but I *will* apologize for the errors, and clarify things, in the next entry. And it won't be a rant on you, specifically.
[15:22] kagabandurriasconcuerdas Flanagan: thank you
[15:22] kagabandurriasconcuerdas Flanagan: we removed the kiosk anyway


According to Mr. Flanigan, they're going to take some time and reorganize the store. He tells me that it was never copyright infringement in the first place, because they uploaded their own textures, did color-correction work, did their own hair, everything--it's all original out of the box. Or the boxed hero. I think he somewhat misunderstands what copyright infringement actually is, but he's also far from stupid--he is clearly, and unambiguously, operating within the guidelines that the Labs sent him. In fact, he brought up the point I made in my first rant, that they're not hiding anything. They give out avatars, sets of armor, and outfits in their lucky chairs; they take out ads; they participate in hunts. How is any of that hiding anything?

And he's right. He's not hiding. And he's changed my mind on a couple points, that I'll be employing from now on.

1. If there's a dispute between residents, I am going to talk to both sides, if I can. I'm not going to blindly veer off into opinion without at least making the attempt to verify. As it turns out, I was wrong on a few points for Boxed Heroes, and Mr. Flanigan, I apologize for any impact that had on your business at large; such was not my intent.

2. According to the Labs, it's not copyright infringement if it doesn't use the name. So at least on the grid--if nowhere else in reality--ARing on the basis of appearance alone won't be heeded by the Labs. We'll have to wait for really egregious examples of blatant infringement to parade by before the Labs will listen.

Though that does, of course, lead us to point three:

3. Kona Linden has a lot to answer for.

For more (though not clear-cut or easily understandable) information, check out Ed Fair on trademarks and likenesses, or the Chilling Effects' FAQ concerning Protest, Parody & Publicity.

Oh, one last point? Because I think this is important to mention as well. Mr. Flanigan--as mentioned, he's removed the Step Up! kiosk from his store--didn't remove the kiosk based on my post, or any fallout from it. He removed it because when he received it, he was told that it was a group based around prevention of 'ripping' technology, such as that employed by the CopyBot program, Meerkat, Glintercept, and, as he mentioned, the Emerald viewer.

I don't know who gave him the kiosk. I didn't ask. But he says he was clearly misled as to the purpose of the group. Now, I won't go out on another limb and accuse anyone of outright lying to get the Step Up! kiosk out in stores, but I do find it highly intriguing that people would get such a wrong--and such a distinctly wrong--impression on the real purposes of the group.

Funny, that. Isn't it?

(Additional note: In reviewing this, and reading over Kona Linden's notecard again, I should state for the record that, while the card IS vague and misleading, the important--"important" meaning "legal", in this sense--phrases ARE there:

("In general, the use of tradmarked/copyrighted material is frowned upon in Second Life, unless of course you own the rights to the material."

(In other words, if you don't own the rights to the material outright, and someone files against you, the Labs WILL remove your work.

(Linden Lab is merely obligated to "cease & desist", meaning we will warn a resident and take the appropriate action, pending on the nature of the violation.

(In other words, the Labs won't stir a finger to stop copyright infringement in any way UNLESS they hear from the folks owning those copyrights--and if it's not a clear-cut case where rights are fully and legally owned, the content will be restored by the Labs.

(All Lindens are required to remove all content utlizing trademarked materials, with or without notice.

(In other words, if the Labs hear about it--through the filing of a DMCA cease and desist order, or other means--they can take your content without telling you. They're not legally REQUIRED to tell you, it's just a social nicety.

(Lindens will not remove copyrighted material upon seeing the items in-world unless the owner of the copyrighted material notifies Linden Lab per the DMCA protocols noted on our website.

(In other words, the Lindens will only remove copyright-infringing materials if the clear owner of the copyright complains per item using the specified DMCA protocols the Lindens have established on their website. These may be different than the filing procedures allowed anywhere else.

(Repeated violations by a resident can result in one's account being placed on probation or permanently banned.

(In other words, if too many DMCAs are filed against you as a maker of copyright-infringing content, the Labs will remove your ability to login to the world, short term, or permanently ban your account, long-term, at their discretion.

(The legal wording IS there...but you have to know what you're looking for. And you have to understand what you're reading. AND THE SPELLING ERRORS AND GRAMMAR DISCREPANCIES DON'T HELP.)

8 comments:

MichaelK said...

Well, they can't just go about making pre-emptive decisions about copyright infringements. They'd lose their protections under the DMCA.

"Section 512 of the DMCA contains what are called the "safe-harbor" provisions for online service providers. These safe harbor provisions may shield you from liability for the copyright infringements of your site's users and for linking to copyright infringing material from other online sources, so long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no actual or effective knowledge that the material in question is infringing."

Linden really is doing what the law requires them to do here, with the designing a notice-and-takedown process & etc.

So the problem there is with the DMCA - as usual.

Trademark is another - consumer protection based - thing altogether. Especially since there isn't a grey area when it's a well-known mark (can't claim ignorance) and it's blatantly being marketed as being made/endorsed by the mark holder.

As for the Boxed Heroes, yes, they're obviously taken from known characters, but they haven't taken the entirety of the trade dress and let's face it, there's a lot of incestuous relations in that design area anyway. Alan Moore's Rorschach was his re-interpretation of Mr. A and The Question, whom DC wouldn't let him use (he was going to RUIN those characters DC bought from Charlton, you know). And let's face it, Ditko copied himself when he created Mr. A as a reference to The Question.

Emilly Orr said...

You're not wrong on the incestuous nature of comics and chracter creation, and you're not wrong on the DMCA provisions either--which does bring my mind back to why Step Up! is protesting in the first place: if the Labs are doing what they can to enforce copyright issues, when they are claimed, and the cease and desist orders are obeyed, and we know they are, then...where's the problem?

Sure, there's the continual erosion of trust on the grid, but I think that's more, at this point, just sniping (I'm as guilty of it as anyone). "Because X bad things happened in the past, and Y bad thing happened recently, why, the Labs never do anything right and this is proof!" goes the thinking. And that's just not true.

(And when I, one of, I believe, the harshest of Linden critics in the blogsphere, says there are things the Lindens are getting right? It might just be time to listen.)

There's also the very odd culture of 'free' on SL: people seem genuinely convinced that, if they put it out as a free item, they aren't infringing copyright, because they're not charging for it. Making a profit has nothing to do with copyright protection--you can--and people do--charge for things that are made both in protection of, and in violation of, copyright.

MichaelK said...

Yes. Copyright laws from the physical world don't work so well in a virtual world.

You really can't stop people from copying and replicating things in a world where there's no scarcity of materials and it essentially costs nothing to manufacture. You could spend every waking second trying to track them all down and never find them all.

And that's where we get to the culture thing. Like you said, people don't even understand the physical world rules, it gets even worse without those constraints. They see it as a monetary thing - costs nothing to make, not taking any money to make it - and so there's no social taboo.

The only really scarce things you have are your time and attention. If you could move towards a society where what people really want to pay you for is something you've made only for them, and it's considered socially lame to have some mere copy of something that was made for someone else and not you... well, there you might start to have something.

But that requires the society to change and stop treating/thinking of the virtual world the same as the physical world. Changing the rules is easy, but the people are who you need to change.

Emilly Orr said...

Exactly. And on the grid, that's the heart of the problem.

Amanda Palmer did a lovely blog post on this very issue, as far as music goes (she's even posted a follow-up that goes deeper into the issues); in effect, she is not there to make money for a bunch of suits in windowless offices to find a way to monetize her contribution further. She is there to make art, and to sell art, and if that means she stands on stage and holds out her hand, then she does that.

It's a very direct model, and I'm hoping like hell it catches on: in the virtual world, you can see the art; you can even download images or samples of that art (or, in the case of books and music, sometimes the entire created piece); but if you want more than that, you pay for it. And you don't go to other sources without knowing you're taking money from that artist.

And by and large, people are signing up to support this model. We're seeing it on etsy; on small independent record labels; on MySpace and PayPal; artists booking their own gallery tours, their own music tours, publishing their own books (though granted, NO small run of books will EVER replace the hundreds of thousands of copies a big name press company can give a writer).

The virtual realm is not the real world. There is more and closer access, on both broad and narrow channels. And I think a lot of people have this fuzzily indistinct idea that the internet is something like comprehensive radio--there are ads, and there are stations you don't want to listen to, but it's all free, in the public opinion. Listen to it, record it, circulate the tapes, make your own mixes--it's fine, right? Because it's out there. Because it's sent out for free.

What people don't consider is the copyright/broadcast fees the radio stations (media companies, magazines on occasion) pay for airing rights. Even Hulu runs on this model--you watch television shows "for free", sure, but you're also watching ads (and if you're a member, you're rating ads, discussing what does and doesn't work on the forums, and interacting with the company on what you want to see, and don't want to see, at any given time).

Getting people to admit that the virtual world is not the real world, though, on Second Life--is surprisingly more difficult than it sounds...

Goti Soderstrom said...

Hello, I'm Boxed Heroes co-owner. First of all, thank you for the corrections you made in the post. Of course, it would have been better to ask us about those points before. Rumours are not always a good source of information.

As I was the one who placed the Step Up! kiosk at the shop I think I should clarify why I did so. As kaga told you, it seems I completely misunderstood the campaign. I thought it was aimed to fight stolen content WITHIN SL, I guessed through the use of devices such as GLIntercept, copybot or viewers like Emerald.

Of course, it wouldn't have any sense to place the kiosk if I knew that the campaign implied something more.

The notecard inside the Step Up! kiosk talks about content theft, how you can spot content theft and what to do if you think something has been stolen. But I can't find any reference in the info notecard to copyright (to be precise, the word just appears when they state what DMCA means). I couldn't find a word saying anything about SL content that has a copyrighted referent in RL. Not a word. Everything it says seems to point to that ripping technology.

Is the notecard ambiguous? Does this campaign try to fight something more than what I thought it did? I'm still not sure. Probably I should have joined the group and asked for more info. My fault then.

And how I got the kiosk? I recieved lots of notecards from groups and subscribos from different shops telling about the campaign, some of them including the mentioned notecard 'Step UP! against Content Theft' and the kiosk. You just needed to click, accepting an incoming notecard or object.

Dale Innis said...

Wow! That notecard definitely needs some work, unless I'm overlooking some subtle things. It does contain some true and correct stuff, as you point out, if you know what you're looking for. But it also says stuff like: "The mere shape of the car that was created is NOT trademarked". While that's technically-speaking true, the "mere shape" of the car or other object may well be copyrighted, or covered by a design patent. And the suggestion that making a bag that looks just like a Gucci, except that it's called "Pucci", is automatically protected "parody", is just flat wrong.

"It would be best" that you design your own logos rather than using someone else's? /eyeroll

SL has played under the radar for quite awhile, but that just means that alot of illegal stuff has been tolerated because the impact was de minimus: too small for anyone to care about.

That notecard should stick to the facts: copyright and trademark and patent laws exist, and apply, within SL just like within RL. The Lab will act if and only if a rights-owner contacts them and complains. If people want to know if they are infringing, they should read up on the subject, or hire a lawyer. Putting amateur legal advice in a notecard and giving it out is imho not something the Lab should be doing. Or at least I wouldn't be doing it if I was them! :)

Emilly Orr said...

Goti,

I think every business owner they could track down, practically, was sent a copy of the kiosk; I know I received a copy several times over, from Designing Worlds on down. And, considering at least in the beginning their stance was to force the Labs' hands to do something, paired with trying to get all third-party viewers banned (and add in a desire to ban all non-premium-account holders from play)...well, it's a wonder they actually make mention of copyright infringement--or their term, "content theft"--at all.

I think the problem is not the spreading of rumor--though that can be bad enough--but the barrier crossed when it becomes folklore on the grid. "Everybody" knew what had happened with Boxed Heroes, so I never even thought to ask. I should have, and for that, I am sorry.

Copyright infringement--on the net or on the grid--is a serious problem, but I have to believe that there's a better way to go about it than empty proclamations that the Labs should "do something" and that the Labs should take back their open-sourcing of the viewer code. Those are not solutions to the problem; those leave us, as makers and as residents, further mired in controversy and doubt.

Emilly Orr said...

Dale,

I thought the same thing. Kohl, for example, patents and trademarks the shape of certain of its faucets; so that not just the materials used, or the manufacturing set-up is copyrighted, but the actual shape of the design is patented; remake anything with that particular shape and you run the risk of litigation.

And McDonald's won several court cases against companies with "Mc"-anything in their names, irrespective of any other forms of violations, just on the strength of the "Mc"-branding by name alone.

Kona Linden seems barely informed on the issues, seems profoundly confused on what the difference is--if xie perceives any difference at all!--between the principles of "fair use" and the principles of "parody", as far as legal concepts go, and, ultimately, seems very sacrificial; if anything gets back to the Lindens as a group, they can toss xir on the chopping block and claim ignorance. Brutal, but very clever.

"Oh,we had no idea! They've been sacked. We promise that won't happen again."

In the meantime, they can line up another flunky to start spreading a different form of misinformation.

To be fair to the Labs, they are acting within the precepts of DMCA; they cannot tap every violation of copyright on the grid, because that would mean they know in advance; if they know in advance, they themselves become liable for the infractions. Instead, if they only "learn" when someone sends in a DMCA cease and desist letter, or ARs someone--and they prove that someone holds the legal copyrights for that item--they can then spring into action and block or remove the offending content. DMCA, while never intended to be used in this way, only works for companies in this way.

Unfortunately, it leaves the Lindens very much in a digital ivory tower--they can't come down and see the copyright violations, but without coming down, they can't really get a sense of what their residents feel. It's a depressing Catch-22.