On SecondLife's 'Intellectual Property', Textures and More (Updated)

Update at bottom.

With all the Copybot nonsense going on, I got distracted from writing this post. I'd intended to write it much earlier, but people were IMing me and discussing things with me (not to mention a migraine) - reasonable people who happen to be content creators within SecondLife, people I have come to know fairly well and have respect for. So before I delve into the topic of the heading, there are a few things that need to be said in this context which are simple, and which are reasonable.

First off, the creation of Copybot was bound to happen. In a way, it's amazing it took this long. The people of libsl are not to be blamed as a group¹. They did what they were doing to make further development by us, the community, possible. That they didn't get an API from LindenLabs and were building their own is to be commended². So don't spank the good people, they don't deserve it.

Now - on to discussing 'intellectual property' in SecondLife, which is sort of related to the Linden post, 'Copyrights and Content Creation in Second Life. The disclaimer here is that the post is to inspire you to get to the truth of the laws as they apply to you; it is NOT legal advice.

SecondLife's Ownership Issues

I'm not a lawyer, and I do not play one on the internet. I am, however, someone who has participated in discussions related to patent, copyright and trademark law up to the WSIS level³. I've been around some of the movers and shakers when it comes to what is called 'intellectual property'. I've been an editor and community facilitator for LinuxGazette.com⁴, as well as a writer who has written about licensing pretty consistently over the last 6 years. In the 90s, I dealt with a software 'piracy' case related to a DoD contract where the licensing was greater than my annual salary for the project I was working on, and we got the copyright violators to pay. I've been corrected by people like Lawrence Lessig, I've violently agreed with Richard Stallman, and I've dug into issues related to 'IPR' as related to developing nations. So I am a layman, but I'm a pretty well saturated layman.

That said, the 'intellectual property' in SecondLife is a misnomer in it's own way. It's Copyright law with some minimal Trademark Law. There are no patents. 'Intellectual property' itself covers three parts of law which do not combine well - SecondLife only has two at this time. So let's talk about Copyright.

Copyright is implicit. That's all there is to it. It is implicit. But to defend your copyright against violation - often called piracy - you have to take measures to avoid the material involved from being copied without permission.

In SecondLife, every asset - clothing, texture, script, notecard, prim or combination thereof - has the permission settings of Copy/No Copy, Modify/No Modify, Transfer/No Transfer. If you create something, you can toggle these to assure the permissions you wish passed along to the user. One can rarely find a 'Copy/Mod/Transfer' item for sale; this is because anyone can hand out copies or modify them as they see fit.

Of all 5 of these types of items, 4 can be done outside of SecondLife⁵. These are textures, scripts and notecards. Certainly, the Linden Scripting Language doesn't run anywhere else yet, but it can be written outside in a text editor. With Chisel, prims can be created and manipulated from outside of SecondLife. Notecards, of course, can have copyrighted text pasted in.

So this means that all the copyrighted material isn't necessarily created in the virtual world. It's created in the real world. And if we take a sensible approach, SecondLife exists in the real world - and therefore all copyrights belong... in the real world. Period. And this is why Linden Labs gives DMCA information on their site. It's because if a copyright is violated, it has to be settled in the real world. All Linden Labs can do is give the ability to protect one's copyright and/or trademarks. Who knows. Maybe patents are next (but that will be a completely separate topic).

What has effectively happened - regular people who may never have encountered copyright law, let alone trademark law, have suddenly been tossed into the middle of things. And all sorts of 'experts ' have popped up, claiming some of the strangest things. The truth is that if you are really concerned about your copyright, you should be talking to a lawyer. So, you see, SL isn't a game in that regard.

For giggles here, toss in the fact that copyright law around the world isn't always compatible. I am uncertain (and if this is an issue for you - ask a lawyer!) - but I believe that if you are in a foreign country and you upload things into SecondLife, they fall under US law. But if I download things from SecondLife into another country where copyright law varies...

Which, of course, takes us to the next point:

The SecondLife Virtual Public Domain

There is a sort of public domain in SecondLife - a virtual public domain of sorts. But it's not a real public domain - it's the SecondLife public domain. The first part of this public domain is found in the 'Library' part of your inventory, and is supplied by Linden Lab. By the Terms of Service, Section 1.3, everyone who uses SecondLife is given license to use content which is provided with the service - which could be said to include the 'Library' part of your inventory. They probably won't sue if you use that water texture on your website, but maybe they can. They have the right to protect their copyright - yet within the virtual world of SecondLife, that Library part of your inventory could be considered a virtual public domain. It comes with the service that is called SecondLife.

The other aspect of the virtual public domain is what are known commonly as 'freebies', though only the freebies which are Copy/Mod/Transfer truly are part of the virtual public domain.

Like the real world - I believe unfortunately - copyrighted works don't fall into the virtual public domain unless the owner of the material decides to allow that to happen - AND - if it does happen, it does not affect the objects already outside of their personal inventory. You can't toggle a switch and have all the widgets you sold go into the virtual public domain. There's no mechanism for this, and it's doubtful anyone would use it⁶

The question then arises whether someone who gives away things to the virtual public domain within SecondLife is also giving away their rights in real life. Using a texture as an example - I could give you a texture that is copy/mod/transfer, but if I protect the copyright outside of SecondLife (thereby demonstrating that I am attempting to assure that there are no violations) and someone downloads it from SecondLife and uses it in the real world - is that a copyright violation? As I said, ask a lawyer - but I'm betting something like that would be a legal precedent case. Ask a few lawyers. You might get different answers.

A very practical aspect of this is that the Asset servers of SecondLife increase in size every day. But nothing is ever taken out - EVER. And while this is an interesting stockpile which costs more and more silicon to house, one has to remember that by the Terms of Service, section 3.2, Linden Labs has the right to use these things as well. That is a practicality of the service which they provide, as I have mentioned before.

But let's get to the fun stuff. Let's get to practicalities.

SL Texture Practicalities

It seems that Linden Labs is not legally liable for the copying of your works; it's your copyright which you have to take measures to protect to assure that your copyright is not violated. Interestingly, part of the Copyright protest today/yesterday was effective in this regard - the closing of businesses was a clear attempt by people to protect their rights. Whether most of them knew it was legally important was not apparent, but the 'I do not want people copying my stuff' thought caused a reaction which was legally important.

Yet with selling textures- as discussed in SecondLife Ethics Group Meetings - a problem arises. For textures to be useful, they have to be Copy/Mod/Transfer, so to sell textures one has to give up these protections. Instead, Digital watermarking is the most effective tool. Yet, if someone downloads the image and changes it, then reuploads the changed version, has there been a violation? I don't know, I suppose it would depend on the case. What if they use those textures in the real world? The more we discussed it in the Ethics meeting, the more that I thought that if I were in the business of selling textures, I would not do it in SecondLife - I would sell them off of the web and make people pay for the uploading themselves. Fortunately for everyone, there are people much nicer than me selling textures in world, and the honor system seems to be working ok for them. I don't know really, that would be for them to say.

Legal Cost Scaling Between Worlds

Textures are really the only thing in SecondLife that demand this sacrifice of SL provided control. But when you consider paying real lawyers for profits in Linden dollars, then things get skewed. Is it worth suing someone for ripping off your texture when you might be making $50-$100 US a month? Probably not. Legal costs do not scale well for Linden dollars; if there is a lawyer out there willing to work for 300L an hour, I'd be suspicious. So for residents making money in world from their creations, there's a big question of whether suing someone is worth it. You might try to sue Linden Labs, but I'm pretty sure that the Terms of Service insulates them. And we're not even getting into whether the person who allegedly is violating the copyright lives in country different than your own. It's a mess when you really sit down and think about it, but so far the community has muddled through, and will probably continue doing so. I think we will. I hope we will.

Yet - real world companies are forced into positions to protect their copyrights and trademarks. For example, if someone were using Microsoft's name in vain within SecondLife, and they were notified, they'd have to take measures to protect their trademark. If someone posted Windows Vista code into a notecard, Microsoft would have to take measures to protect their copyright. The larger companies, which we see more and more of recently, have the assets to fight those legal battles. It might even be tax deductible. I don't know. Think twice before putting out that Coke machine, or zooming around in your 'virtual public domain' landspeeder' while dressed in your Darth Vader avatar and listening to Eminem on that virtual CD you have. Coke and Lucasfilm might show up with a few Jedi Knight lawyers and drop some Jedi mind tricks on you.

The Reality

Linden Labs provides tools and an environment as part of a service. But your intellectual property is your own - to balance that, they do act proactively to give people as many tools as possible to protect their creations. Yet the technology itself assures that people will always have the capacity to copy your work (and mine!). Copybot just dragged that out in front of everyone, and even then it has not really been understood.

Myself? I'd like to see that if I set something to Copy/Mod/Transfer that no one could change it, assuring that it would remain freely available - but I can't. Someone can always change the rights I give them, and there's no incentive for Linden Labs to change that (other than them trying to please me, the writer of 1 who doesn't form the majority opinion) - yet by doing that, it allows people to place things in the virtual public domain which decreases the incentive to violate copyright law. If creators are actually creating, and Linden Lab can use any of it - why can't the rest of the residents?

At the end of the day, your legal rights are something you have to look after. Go to it with vigor. If you're really concerned, find a lawyer that specializes in copyright law and talk to them. But then, aspects of copyright law and trademark law in the context of a virtual world? I'm sure some lawyers might want to do that for free just so that they could get their name in a legal precedent.

And for good measure: The disclaimer here is that the post is to inspire you to get to the truth of the laws as they apply to you; it is NOT legal advice. Go find a lawyer if you're really concerned and ask them.

Update: In an interestingly related post, Lexblog considers law firms in SecondLife.

¹Though this Prim Revolution character deserves so much scrutiny that any self respecting proctologist would cringe and scream, 'Mommy, that's not a thermometer!'
²There have been hints and allegations that Linden Lab gave ESC an early API to use, and that doesn't seem to have been addressed. If that API has the same capacity, not only does it undercut the libsl folks, it puts ESC at unfair advantage. To date, this is another unsubstantiated rumor.
³ WSIS PCT Caucus.
⁴ That link redirects to another site; part of the reason for that was an issue of trademark and community.
⁵ And clothing may be able to be done outside of SL. I just haven't seen it yet.
⁶ I would like to see such a thing done where all assets over a year old became part of a virtual public domain, but this is impossible because of real world legal ramifications. This would, however, inspire more creativity.

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