Of Copyright And Virtual World Creations

A business is suing a Second Life avatar for copyright infringement and trademark infringement, and since this impacts more than SecondLife, I'll write something of it here.

Case Specific

Generally speaking, as Eric Rice writes, a virtual bed is like code. And VintFalken wonders, too, how the bed was to be had. But then, if you read the legal filing (7.5 megabyte PDF), you'll find some interesting things.

Consider this timeline gleaned from the filing:

No later than in or about April, 2007: Alleged infringement starts.
June 11th, 2007: Eros filed an application to obtain a federal trademark registration (Serial Number 77202601)
June 25th, 2007, copyright applications were sent in.

Does it strike anyone as odd that the applications for trademark and copyright were sent in about a month after the 'infringement' started?

And in the legal filing, there is no demonstration that the objects are the same - they may look the same, but functionally speaking they may not be. That would have to be demonstrated (I'd love to be a fly in the courtroom for that.

Quoting Second Life sex bed spawns virtual copyright action, emphasis mine:

...Since April, however, another Second Life resident, going by the name Volkov Cattaneo, has been selling a bed which, Mr Alderman says, closely resembles his own creation, at a sharply reduced price ($15)...

'Closely resembles'? That isn't a copyright violation. A copyright violation is when someone copies something without permission of the copyright holder - not necessarily the creator, because some idiot thought commoditizing creator rights was a good idea. But this could only be a copyright violation if the bed was actually copied, which would include everything about it - scripts, textures and primitive objects. If the bed is a copy, or a derivation of a copy, then yes - there is copyright infringement. But if it just looks similar, it isn't.

It could be trademark infringement if Volkov Cattaneo used a trademark that was registered, or was being applied for - but if you look carefully at the timeline, you'll see that trademark registration happened after the alleged infringement.

All in all, it looks like an explorative case. There is nothing in the legal filing that holds the smoking gun. It's very circumstantial, unless I missed something - which I doubt. I was amazed, actually, that they alleged the abuse before trademark registration. The copyright is implicit, so applying for the copyright is simply a formality. Not so with the trademark. But if these are not the same beds... what is this all about.

Generally Speaking

I'm no lawyer (though what an interesting time to be one!), so it would be interesting to see what some lawyers think of this - specifically Lawrence Lessig, Robin Gross and Eben Moglen immediately spring to mind. But without a direct comparison that demonstrates that the code within the beds is the same, it is difficult to say. There are open source scripts out there which do the same things. This could be a case, at least partly, of open source being accused of taking from proprietary - akin to the great SCO vs. Linux battle which has wasted a lot of time and money.

On another level, if the textures of the bed are the same - the issue may well be a copyright violation for that, if the textures are not readily available through anyone else in Second Life. After all, people sell textures with full permissions and which could be used on different objects that are the same shape. Only Linden Lab has access to that sort of information, which may be why they are being called in. Yet still - this opens up all sorts of questions related to what could be considered a copyright violation within Second Life. Consider that yesterday I was accused by someone of stealing from them though I had purchased a full rights copy from someone else. The products did look similar, and it wasn't a money maker so I readily pulled it from the shelves - but still, I do not know that there was a violation. It is somewhat easy to make things that look alike in Second Life - people do it all the time.

The trademark case, I believe, is pretty weak. But does this mean that people should register trademarks for businesses within SecondLife, thus legitimizing them? And while copyright is implicit, does the filing on this case indicate that people should formally copyright their work?

Plus - Linden Lab has not implemented licensing along the lines of Creative Commons or Open Source - which forces people to give away/sell with full rights to allow the licensing in an uncontrolled way. This has been brought up with them before, but they haven't implemented at it - and haven't even hinted at doing so. There is no real central repository for scripts that are open source, no version control, nothing. The same with objects. It is possible for someone to take something which is open source and incorporate it into something which is proprietary... and if they do so and turn around and sue the open source community, the recourse - if there is recourse - is messy. The only defense is the publishing of the code outside of Second Life. Some people do this, but I bet the majority don't.

And, at the end of the day, lawsuits may still crop up. Truth be told, kits for open source sex beds are available for less than 100 Linden dollars all over the place - we're talking between 30 and 50 cents.

Virtual Worlds really start to show the flaws in much of these sorts of issues. First, a lack of education. Second, some pretty big loopholes provided by the virtual worlds themselves - even exploits in the code which are really an issue with Linden Lab service... and that service, as it is being called in the context of Bragg v. Linden Lab, is one sided.

And let's not forget that some of the rules set by Linden Lab themselves may be considered misrepresentative. 'Disclosure' is a good example.

Unfortunately for Linden Lab, they may find themselves a precedent in the market of 'Virtual World Service Providers' - if not now, maybe in the future. Why? We could talk at length about moral and ethical issues, but here's the bottom line:

Someone has to pay the lawyers.

I'm just waiting for someone to figure out how to implement a patent in a virtual world. That will really demonstrate how hokey a lot of these things really are in a digital age... and especially an age of virtual worlds.