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:
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"
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:
FREEBIE BAZAAR in Stillman,
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.)