Tuesday, January 12, 2010

though there is nothing left to gain, but for the banshee that stole the grave

I got a private offer today from LinkShare.

Please read the following terms, and if you ("Partner" or "you") agree
to them, you may join via the link to LinkShare at the bottom of page.
In consideration of the promises set forth below, Linden Research, Inc.
("Linden Lab," "Merchant" or "we") agrees as follows:


When I went to check it out, my attention briefly dovetailed due to something that just seemed deeply hypocritical, from a copyright standpoint.

1. Offers and Engagements.

1.1. From time to time, Merchant may post on The LinkShare Network(TM)
offers to pay to other participants a specified commission in return
for certain advertising services leading to a Qualifying Link
(defined below). If such offers receive an identification number from
The LinkShare Network(TM) they shall be deemed to be an "Offer" for
purposes of this Agreement. The term "Offer" shall also include any
counter-offers resulting from an Offer.


I found they were offering banners better tailored to my (*cough* pimping *cough*) needs than the first little 'sign up here' square--and the one I picked, you'll notice in the sidebar.

1.2. If an Offer made by one party is accepted by the other party in
accordance with the Offer's terms via The LinkShare Network(TM), an
"Engagement" will have been formed. Each Engagement shall have the same
identification number as the original Offer that lead to the Engagement
and shall be governed by the terms and conditions of this Agreement.
However, in the event of any inconsistency between the terms of the
specific Engagement and the terms of this Agreement, the terms of the
Engagement shall govern.


Which brings us to the Na'vi.

Avatar,Second Life,copyright
(Reduced in size for linking; click for full size of banner.)

1.3. At any time prior to Partner providing a Qualifying Link, Merchant
may with or without notice (a) change, suspend or discontinue any
aspect of an Offer or an Engagement or (b) remove, alter, or modify any
graphic or banner ad submitted by Merchant for an Offer or an
Engagement. Partner agrees to promptly implement any request from
Merchant to remove, alter or modify any graphic or banner ad submitted
by Merchant that is being used by Partner as part of an Engagement.

Does anyone know, I mean, 100%, spoke to Lindens who said 'yes, we have a partnership with James Cameron and 20th Century Fox that allows us to use Second Life versions of Avatar movie creations', KNOW, that they have permission to use this?

2. Partner's Responsibilities and Certification of Residency.

2.1. Partner will link its web site ("Partner web site") to areas
within Merchant's site using URLs specified in the Engagement
(the "Required URLs"), upon receiving Merchant�s written permission
to provide such link, from such site. Merchant shall only provide links
to Merchant�s site from web sites for which (a) it is the legal
registrant, and (b) Merchant has approved (in writing, including
through an email) such linkage Partner may post as many links to
the Required URLs and the rest of Merchant's site as it likes on
Partner's site. The position, prominence and nature of links on the
Partner's site shall comply with any requirements specified in the
Engagement, but otherwise will be in the discretion of Partner.

Because if they don't? It looks really, really bad for the company that did the takedown on Lalinda Lovell's hand-drawn Na'vi skin sets to not only encourage the use of such infringing content, but to refuse to take down other marketers of Na'vi skins and outfits (and no, LL, I'm not telling you who else I found, screw you, you're being inconsistent).

2.2. Partner agrees not to make any representations, warranties or
other statements concerning Merchant, Merchant's site, any of
Merchant's products or services, or Merchant's site policies, except
as expressly authorized by the Engagement. Partner will only post,
present and/or otherwise make available content that Merchant has
provided, through the LinkShare Network.

This is how inconsistent:

Avatar,Second Life,copyright
(This is the actual size of this banner; clicking will just bring you to this banner's size again.)

There are more of them, and to a point, all showing more of the skin and outfit. Which they may not even have permission to use.

2.3. Partner is responsible for notifying Merchant and The LinkShare
Network(TM) of any malfunctioning of the Required URLs or other
problems with Partner's participation in the Engagement. Merchant will
respond promptly to all concerns upon notification by Partner.

2.4 Partner hereby represents and certifies that he or she does not
reside or have offices in New York or North Carolina.

How insane is this? Because if they don't have a granted right to do this? They're just as bad as the copybotters. Worse, because they're making an official statement, here--because, stupid marketing ploy or not? If they don't have permission for the tie-in, then the fact that they still have the right to go after anyone for copyright infringement is galling. And definitely sets the double standard, with the bar very low.

3. Commissions.

3.1. Merchant agrees to pay Partner the commission specified in the
Engagement if Merchant sells to a visitor to Merchant's site
(a "Customer") a product or service that is the subject of the Engagement
and if that Customer has accessed Merchant's site and purchased the
product or service via a Qualifying Link.

This is the one that kills me, just kills me:

Avatar,Second Life,copyright
(This is the actual size of this banner; clicking will just bring you to this banner's size again.)


3.2. A "Qualifying Link" is a link from Partner's site to Merchant's
using one of the Required URLs or any other URL provided by Merchant
for use in The LinkShare Network(TM) if it is the last link to the
Merchant's site that the Customer uses during a Session where a sale
of a product or a service to Customer occurs. A "Session" is the period
of time beginning from a Customer's initial contact with Merchant's
site via a link from the Partner's site and terminating when the
Customer either returns to the Merchant's site via a link from a
site other than Partner's site or the Engagement expires or is terminated.

Sure, it's your average tropical SL fantasy; it's your average hair; it may even be someone's freebie eyes. But the skin and the outfit? Definitely Avatar material, even if created completely in-house; it is a decided product tie-in.

3.3. Merchant shall have the sole right and responsibility for
processing all orders made by Customers. Partner acknowledges that
all agreements relating to sales to Customers shall be between
Merchant and the Customer.

3.4. All determinations of Qualifying Links and whether a commission
is payable will be made by The LinkShare Network(TM) and will be final
and binding on both Merchant and Partner. Prices for the products will
be set solely by Merchant in its discretion.

But without verification of their agreement with 20th Century Fox and James Cameron, there is zero difference in my mind between the Brazilian party animal who lifts L$10,000 in textures to repackage them all with new names at L$50 a box, and the "Free AVATAR" banners. None. Nada.

3.5. In performing any duties hereunder, Partner shall not engage in
any of the following practices: (a) serve (or engage any other party
to serve) advertising through adware or spyware, (b) send unsolicited
emails related to or linking to either the Required URLs or any URL
owned by Partner, (c) engage in any practice that incents or encourages
users to view or make purchases from the Required URLs, via any offer,
rebate, compensation, or other promised consideration not authorized by
Merchant, or (d) display on any Partner web site content that (i) is
sexually explicit (i.e., contains nudity or actual or simulated
sexual conduct), (ii) is deceptive or misleading, or (iii) encourages
or facilitates illegal gambling or any other conduct that violates any
law or any violation of any third party�s rights.

It's insane. It's sheerly insane. Tell us they hear our worries about copybotting, about copyright infringement, and tell us that they've got everything under control, and they'll be able to roll out replacement content for stolen content very, very soon--and then turn around and lift someone else's IP to pimp their stuph.

3.6. In the event Partner transfers to any other party any web site
linking to the Required URLs, it shall immediately inform Merchant.

Avatar,Second Life,copyright
(Reduced in size for linking; click for full size of banner.)


Is this right? Is this fair? A movie that's selling out IMAX theatres, well, hell, it's James Cameron, right? It's not like he doesn't have millions from Titanic still. He can afford to let this one go by, can't he?

Well, it's also Second Life, I'm not entirely sure Cameron knows it exists more than just in passing--but it's the principle here, really. And it's a really simple principle:

1. If you're going to use something, that belongs to someone else, get permission to use it. If you can't get permission, don't use it.

What's so hard to understand about that?

(Oh, and for any Lindens who just might wander by--near as I can figure, to the rules of engagement, the only iffy bit about this post is that I'm not leaving the Second Life/LinkShare created banners as LinkShare links. According to the provisions in this section:

(4.1. Each party owns and shall retain all right, title and interest in
its names, logos, trademarks, service marks, trade dress, copyrights
and proprietary technology, including, without limitation, those names,
logos, trademarks, service marks, trade dress, copyrights and
proprietary technology, and any content provided to or through the
LinkShare Network ("Intellectual Property") currently used or which
may be developed and/or used by it in the future. Partner shall not
use, display or otherwise make available any Intellectual Property
of Merchant except as is contained in Content provided by Merchant
through the LinkShare Network, subject to the terms herein and those
contained within any Engagement.

(I may, in fact, be in violation. I would posit a few things, though, for your consideration:

(1. I am pointing people to the existing link, that does follow your Terms & Conditions as set out on the LinkShare site;

(2. I am in no wise saying I created these images, I think I am quite clearly using them, as official images created solely by Linden Labs, to discuss Linden Labs' policies; and

(3. It would look really, really bad to bounce me after accepting me, first, and after this post goes out, second. It might be directly related to the provisions in passage 4.1., but whether or not, it would be tied in with my accusation of copyright infringement at the Labs. To sum up:

(Bounce me, it looks like I'm right. So take those few points into consideration.)

{Note from the Editrix: In an amusing bit of sidewise irony, Arabella Steadham takes on Avatar, the movie, versus avatar, the resident. It doesn't cover the issue I'm covering here, but it is worth your time to read.}

3 comments:

Astolat Dufaux said...

Wow. I'm speechless.

But not speechless enough to look up 20th Century Fox's VERO page on eBay:

http://members.ebay.com/ws/eBayISAPI.dll?ViewUserPage&userid=foxmonitorcp

It doesn't specifically mention the kind of copyright infringement these banners would fall under, but clearly the company is "serious" about the issue, at least on eBay.

Perhaps someone should send a friendly email to the "antipiracy" email address listed on the page...

alieserd said...

I read Arabella's post about avatars from James Cameron last film in SL. And one the comments led me to
http://themonkeymind.livejournal.com/35638.html
and I googled about the topic and found this
http://filmdrunk.uproxx.com/2009/10/james-cameron-stole-avatar-question-mark
Call me Joe,Timespirits... What I'm getting is that copyright infringement is OK for some people.
But please, let me know if James Cameron and 20th Century-Fox Film Corporation got permission from Tom Yeates and Steve Perry or Marvel Comics (Timespirits) and Poul Anderson (Call me Joe) or his family.
If not, I hope that people with such high copyright concerns make posts about Cameron's infringement too.
Sick of biased copyright defenders.

Emilly Orr said...

Alieserd,

Check the next post in the upline for part of my answer, though I'm still running down the Timespirits link.

My main concern is still--whether or not Cameron is operating with clean hands in this, are the Labs? I'm biased, sure, and I admit it, but just because Cameron may be operating in legally murky waters, doesn't excuse anyone else from kyping Cameron's redux.