Tuesday, April 21, 2009

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Newsfeed: Taser's Lawsuit Against Linden Lab Sign Of Things To Come (Update: Suit Pertains To Sales Of "Taser" Guns In SL Roleplay Area, Names Since Changed At Lindens' Request)

NLSD Wyatt HykovaBloomberg: Taser Sues Second Life Virtual World Creator Over Gun Sales

MANY UPDATES BELOW AND AFTER THE BREAK. In summary, we now know the lawsuit singles out third party developers who sold "Taser" weapons for urban, Grand Theft Auto-style roleplay gaming in Second Life which also makes reference to drug use and other criminality cited in the lawsuit. Read on for more details. - WJA, 4:10pm.

At this point, it's unclear why Taser International Inc. has filed a trademark-infringement lawsuit against Linden Lab and a third party company called Virtualtrade LLC, for the alleged selling of virtual versions of Taser weaponry. A search for "Taser" on XStreetSL, the ecommerce website the Lindens recently acquired, shows no items for sale purported to be Tasers, or for that matter, any mention of Virtualtrade. [See updates below.] The closest item you will find on XSreet is this gun sold by Wyatt Hykova , which is called an NLSD, for "non-lethal stun device". But the only mention of Taser in its sales description is a disclaimer, "Taser is a registered Trademark of Taser International Inc. and not affiliated with NLSD..." I've sent an interview request with the fine people of the Taser corporation, and hope to speak with the Lindens later today. Meantime, Virtual World News has a good summary of the legal issues, including an interview with virtual world law expert and lawyer Benjamin Duranske. "Trademark law," he notes, "is all about eliminating consumer confusion." In other words (as I interpret this) Taser must prove there are virtual versions of their weaponry which consumers might sensibly believe is sold by the actual company.

Whatever the specifics of this particular lawsuit, we're almost certain to see many more complaints of this variety, either as DMCA notices, or suits filed against Linden and third party content creators who operate in Second Life. The world's continued growth rate will make in-world activity more public and conspicuous, while XStreetSL, with its search-able, web-based inventory, will make it that much easier for intellectual property lawyers to locate possible knock-offs of their clients' assets. By this process (or a preemptive strike from Linden Lab), it's likely that all unauthorized virtual references to real world trademarks and copyrighted material will soon be entirely removed from Second Life.

Dont Tase Me Bro sound clip

No matter which way this plays out, there's another Taser-related item for sale on XStreetSL, and in all seriousness, its fate is just as crucial: Jodi Jewell's "Don't Tase Me Bro" sound clip, inspired by the infamous 2007 Florida incident/viral video, now available for use in Second Life for the low price of L$20. It makes explicit reference to Taser International's good trademark, but at the same time, it's a virtual world parody of a real world news event, and parody is supposed to enjoy legal protection. Will Taser's suit pressure the Linden Lab to remove that item, too? And what happens if Andrew William Meyer files a DMCA notice with the Lindens?

Update, 11:54am:  In Comments, Sioban McMahon suggests Taser's objections may be related to mention of Taser in BDSM sex toys in Second Life, some of which are sold in the "Uncensored" area of xStreetSL.  For example, at least two items sold on xStreetSL, a restraint collar (NSFW) and a chastity belt (NSFW) mention "taser" in the sales description. BSDM Second Life product mentions of Taser: "The sub/slave may be 'gagged' via a built-in taser: if the sub/slave speaks without permission, the taser sends an electric shock in their neck (with textured particles sparkles, electric shock sound, and electrocution animation)", and, "Built-in crotch taser (with textured particles sparks, electric shock sound, electrocution animation), for unruly/naughty subs/slaves..."

Update 2, 12:55pm:  Massively's Tateru Nino has reviewed a copy of the brief, which seems to be directed at products related to Crack Den, a popular Grand Theft Auto-style urban roleplay area in SL.  (Website here.)  In Comments below, she says the NLSD product featured above was previously described as a Taser, and is docoumented in screencaptures in the brief.   Now checking to see when this description was changed.  (Virtualtrade LLC, also mentioned in the suit, was the holding company of XstreetSL before Linden acquired it earlier this year.)

Update 3, 2:26pm: I just got word from Crack Den owner Nadir Taov, who tells me the Lindens contacted the in-world company Newman Group, which operates two stores on his land, on April 14. "From what the designer told me," Taov tells me, "[the Lindens] suggested alternative names such as 'stun gun'." He adds, "I wasn't personally contacted by either Linden Lab or Taser. Both store owners who had designed products with 'taser' in their description/names were only contacted by Linden Lab via email."

Update 4, 3:26pm: I sought a comment on this case from Linden Lab, but a company spokesman told me, "We don't comment on pending litigation."  Also, I've changed the title to reflect the story updates.

Hat tip: Otenth Paderborn.

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Sioban McMahon

I suspect that part of this was that it's a BDSM device. The Taser folks have to be reluctant to have their products, or derivatives of their products, used openly in BDSM.

They must have folks Googling their trademarked names.

Laetizia Coronet

I hit Google. In the search result listing (2nd from the top) it's called Taser C10 but on the page it's changed into NLSD A10. At least when I saw it.

http://www.google.nl/search?hl=nl&q=taser+SL&btnG=Zoeken&meta=

Seems like Linden Lab (TM)(C) are getting a taste of their own medicine.

Hamlet Au

That's a very good point, Sio, I've updated accordingly. Thanks!

Tateru Nino

The filed complaint has plenty of pictures *before* the Xstreet taser products started hastily changing their names and descriptions. They're in Exhibit 2 and 3.

Rez Gray

Don't suit me, bro! Don't sue me!
Or as they say on Fark: "Sell something yellow on black that shocks people? That's a Tazin'!"

So just replace 'Tazer' with 'Stun gun' or 'Fibriliator' or 'legal torture device'.

Doubledown Tandino

Pffft, who uses a tazer?
me, I use the trusty lazer.
Tell, me, when has a lazer failed ya?

...durable, reliable, dependable,
the lazer.

Arcadia Codesmith

I suspect this falls into the "let's pretend we're earning our retainer and tell the client that their trademark is in real danger" school of litigation, and it'll likely be settled quietly out of public view, with sharks on both sides buying each other rounds of drinks afterwards.

I do support copyright and trademark, but not to the extent of applauding stupid lawyer tricks -- especially if they didn't do the whole 'cease and desist' song and dance first. And going after the deep pockets rather than the actual infringer? Pathetic.

Or translated into internet meme: Law. Ur doin it wrong.

Henri Beauchamp

Oh my... Are they serious ? A good thing Taser(c)(tm)(whatever symbol needed here) lost its case against a politician in France and that I live there... :-P
I'm so happy I live in a country where no one but true criminals need a lawyer...

Anyway, since I don't wish to make publicity for such a brand, I changed the name in question (which was used as a common name and a verb to describe one of the many functions of two of my products) for "electric stunner", and I hereby declare that "electric stunner" is from now on trademarked by me ! lol !

Ann Otoole

What people that love SL and do not want to see build rights removed to only a select few licensed creators need to do is lose the anti corporate attitude ("up the man!") and report all trademark misappropriation to LL so they can deal with it. The sooner the idiots that think it is OK to steal trademarks and copyrighted content are removed from SL the better.

Deal with the issue or face losing your rights. It is a matter of time.

Viajero

You're right, Ann. What we've got here is failure to communicate. Some peeps you just can't reach.

Mitch Wagner

Ann, I respect corporate property. I am not unsympatetic to Taser here -- I'm not sure they're right, but I'm not sure they're wrong either.

However, I don't believe Residents have any obligation to report trademark violations when they see them. As a matter of fact, I think it's kind of rude behavior, like tattling to the teacher when another kid is chewing gum in class. I mean, he's chewing gum. That's against the rules. But it doesn't do *you* any harm.

If the trademark belongs to me, that's different -- but, even there, I'd be inclined to talk to the other guy before going to the Lindens. I have some experience with this matter, and I've found that most intellectual property violations come from well-meaning errors, rather than malice, and people doing the violating will likely respond to a polite request.

Likewise, if the trademark belonged to a friend, I'd likely talk to my friend and let it go at that.

Adric Antfarm

Mitch is correct. Once you encourage "snitching" it creates witch hunts and more "comrades" than "neighbors" which is not at all what (I think anyway) Second Life is about.

YouTube is able to manage these things (and getting better since it rejected a recent video of mine finding it's soundtrack was well..less than mine) without snitches.

In the end, it's the user who needs to understand he takes risks using items that he does not hold the rights to, Linden since they host and get a cut, and the owner to keep his brand his.


Ann Otoole

Mitch is not correct. Mitch displaying the attitude but the vocabulary of a juvenile delinquent that never grew up. Tattling? lol that is a word only a child uses.

Sorry Mitch you just lost all credibility in my eyes and in the eyes of any legitimate business.

"Supports And Condones Blatant Trademark Theft Because.. Hey it isn't any of my business" - What a bullet for a resume.

OK how is this? Someone in Second Life is cashing out over a million dollars US a year from Second Life from the sale of products with stolen trademarks including Coverse Trademarks. My guess is that Converse would be within it's rights to have Second Life closed during an investigation by auditors to see how much money has been made by the primary infringer(s) (there are many including one involving the word porn on the infringed mark) along with how much Linden Lab has benefited from the arrangement. That is a lot of money. Triple damages on that will be a large number.

So if Mitch Wagner sees someone robbing a store or mugging an old lady in real life what the hell it isn't any of Mitch Wagner's business is it because, after all, he doesn't know the store owner or the old lady right? Sounds like the ugly stereotype of someone from New York portrayed in various media. Oh but wait it isn't the same because it is a virtual world and "lawl" and "bawwwwww" etc. ... Sorry crime is crime. Trademark infringement is Trademark infringement. There is a reason for trademarks and a reason companies file and routinely win lawsuits over trademarks. Only an ignorant fool can't see that trademark infringement is wrong.

This is a problem. Linden Lab needs to commence deleting accounts engaging in pirating trademarks and deleting all pirated trademarks from the asset system. In addition Linden Lab needs to end it's attempt at open source and encrypt the viewer and it's data stream and only allow licensed businesses to sell or distribute content in Second Life.

No like that potential future? Well that is what will eventually have to happen if the idiots rampantly stealing are not removed. Nobody gave anybody the right to steal trademarks. I am surprised at the number of people that used to have good credentials exposing themselves as supportive of theft.

What is this? The self entitled babies who never grew up generation?

A company spends 500 bucks for a trademark. Some new age kid that doesn't like to obey the law comes along and starts making a lot of money a year off the mark that belongs to someone else. A huge glaring liability looms. You people can't see the issue here?

Maybe Linden Lab does need to shutter Second Life after all. Start over. As in do things the way the new 3D virtual worlds now coming online are doing and not allow UGC without some form of license and only by way of expensive tools. The lesson from allowing a bunch of kids to do as they please has been obviously learned.

Enjoy it while it lasts. It won't last long at this rate.

Youtube has snitch buttons Adric. Or are you unable to see them on the screen in front of you? That is how Youtube operates and lowers liability. "Snitch buttons". Sorry to pop your everything is community property bubble. XStreet has snitch buttons on every product page. Second Life client has an option for abuse reporting. Never saw those before?

This is suddenly an issue because it is a cop tool maker involved? What does that say.

As for the Taser suit they are suing the wrong people. There are precedents set for this sort of issue related to ebay and it's relationship with "merchants" as an ISP. The inclusion of malicious content in the lawsuit indicates Taser knows it is suing the wrong party and is really just trying to bring the cops and preachers and politicians after Second Life. It will fail. However Taser has a lot of elected representative supporters so the long term net result might be unkind to Linden Lab if they do not play ball.

Taser is within their rights to bring a suit to have Linden Lab provide the identities of the infringers and then Taser can sue the infringers. The rest of the garbage in their lawsuit looks amateur. But it does not remove the fact trademark infringement is wrong and that they are within their rights to file suit.

If you can't handle international law then I guess you should hop the next flight out of the atmosphere to some other planet.

Hamlet Au

Please keep it civil, it's entirely possible (and preferable) to express strong opinions on this subject without personal invective.

Adric Antfarm

Wow Ann. You know, I'm not going to read it all since I would say something that would finally show Hamy I am who I am. BAN

Let's do the part I got in.

First, YouTube detected on UPLOAD because I was dumb enough to use WMV (which yes- has great media tags). It was not up (I declined to remove the sound with their suggested tracks). It was never up - thus no rats. That was my point - they scan media.

You might not understand this (and I understand that) but there is a code among those who have been in brotherhoods (in my case the military). We don't take kindly to rats. We deal with our own (as Linden needs to do).

I know people in the "real world" have their own little code. That is the reason we don't get you and you don't get us.

I won't hate on you for it however.


Mitch Wagner

I would act to stop someone from robbing a store or mugging an old lady in real life because those are violent crimes. Trademark infringement is just trademark infringement.

Responses need to be proportionate.

If a bystander sees someone robbing a store at gunpoint, or mugging an old lady, the bystander would be justified in using potentially lethal force to stop the crime. Would you suggest the same reaction would be appropriate to trademark infringement? No, because responses need to be proportionate.

Arcadia Codesmith

And the proportionate response to a theft is to inform the rightful owner that their property has been stolen.

If I see a copybotting in progress, or recognize a copybotted piece in some low-rent strip mall, of course I'll report it. A threat to one creator is a threat to ALL creators. The only tool we have to effectively 'police our own' is to share information about infringers.

I don't see any qualitative difference between this and letting an outside party know that their IP has been infringed. Trying to attach some schoolyard stigma to it just lets the problem fester.

I've said it before, I'll say it again; if you want to use somebody else's IP, ask first. At worst, they say no and you have to do something original. At best, they'll get into it and grant you source material not available to the general public.

None of this excuses the law dogs in this case from making some really egregious blunders, however.

Mitch Wagner
if you want to use somebody else's IP, ask first.

Agreed.

Question for Arcadia and Ann: You've probably seen the Coke machines around SL -- they're pretty ubiquitous, maybe the most common use of a RL trademark in SL. Do you know whether the creators and owners have permission to use the branding? Have you reported them to Coke?

Ann Otoole

I have not seen it in writing but there was loads of press around Coca Cola corp granting a no royalties free to use license in sl for their trademarks. Maybe Hamlet can verify.

But hey seems like when the hammer starts to fall you see this stuff come right out of the woodwork:
http://iheartsl.com/2009/04/22/milk-motion-studio-mz/

No wonder LL has a big easy to hit target painted on their forehead since they don't police their server space at all. Well they do. You now can't say words in SL that are allowed on the radio and TV.

Whatever.

Crime pays. Honesty keeps you poor.

Hamlet Au

Yes, in Coke's case, the company did allow Residents to use their logo in builds as long as it wasn't defamatory. But Mitch's basic point is a valid one, there's lots of other real world trademarks in-world which may or may not be unauthorized.

Ann Otoole

Show us some Hamlet.

Show us where Converse, Adidas, Nike, And Disney authorized there trademarks in Second Life. I want to see especially where Converse authorized their 5 pointed star in a circle with text as having the text PORN STARS on it. Or for that matter any other text besides the proper text Converse uses. I would really love to see where Adidas authorized their trademark to have some other name on it. And especially show me where The Walt Disney Company authorized their marks and characters in SL by non Disney retailers.

Show us. Otherwise you are promoting theft and such behavior that can jeopardize Second Life and you should consider getting out and going somewhere else where you cannot damage our businesses and social activities.

Hamlet Au

Ann, Adidas does (or did) have a presence in Second Life, and gave away authorized virtual shoes with their trademark. That was in 2006, in a campaign developed by Rivers Run Red, and they gave away *thousands* of copies. So it's now difficult in many cases to tell immediately what is an authorized SL Adidas, and what is not. For that matter, at least 139 real world corporations have (or had) a presence in Second Life, with their trademarks, often giving away or selling SL content which included their trademarks. This an old list of companies with official presences and trademarks in SL from 2007:

http://nwn.blogs.com/nwn/2007/07/taterus-monday-.html

I'm not even entirely sure how many other real companies have since come in with their own trademarked content, or for that matter, how many have left, and taken their trademarked content with them. So again, as Mitch was saying, it's not often immediately obvious what is an authorized trademark and what is not. Acknowledging that fact is not at all the same as encouraging trademark theft.

Bluegum Lunasea

@ Ann O'Toole

..."My guess is that Converse would be within it's rights....."..

Your guess is exacty that - a guess.

For the love of all things rational Ann, please stop sprouting about things you don't understand and please stop using words you don't know the meaning of.

For the record a "Crime" is "a wrong punishable by the State".

Therefore (alleged) infringements of copyright, trademarks , patents etc ARE NOT CRIMES because (if proven) they are not punishable by the State.

..."If you can't handle international law then I guess you should hop the next flight out of the atmosphere to some other planet."... And if you don't understand basic legal concepts then you should limit yourself to what you do understand.


Ann Otoole

Not a crime eh?

"On Tuesday, December 16, 1997, the President signed into law H.R. 2265, the "No Electronic Theft (NET)" Act. The Act was passed unanimously by both houses of Congress (143 Cong. Rec. S12689 and 143 Cong. Rec. H9883-01). The NET Act strengthens the copyright and trademark laws, providing enhanced protection in the digital age in a careful and balanced manner. The criminal copyright and trademark provisions in titles 17 and 18 of the U.S. Code are amended to: ..."

etc. etc. Go read the laws yourself.

Tateru Nino

It's really hard to tell if a trademark usage in SL is authorized or not. At least one user I know had authorization to use a trademark in SL - whereas an abuse-report from another user about the trademark led to the content all being abruptly removed.

All those trademarked things one of my SL neighbors sells? Probably not authorized. But heck, it's just possible he has a letter. How would I know? How would the Lab know either? It's not like they require us to submit a copy of our authorization for a registry before we rez or upload a trademarked something-or-other.

Mitch Wagner

Tat describes exactly why I don't AR trademark abuses -- too much likelihood that someone who is, in fact, legitimately using the trademark will get punished.

Also, the past 40 years of US history demonstrates that trademark and other intellectual property law works best when it's only casually enforced, and small violations -- if they even are violations -- are permitted. Back in the 70s, radio stations played albums at their full length, without commercial or DJ interruption. Everybody knew why that happened -- it was so fans could record the album off the radio. Likewise, people bought albums and let their friends record them onto cassette and 8-track tapes. Everybody made money, everybody was happy. Now, the record companies go after bootlegging with an iron fist, and their business is collapsing. I don't think that's a coincidence.

Likewise, trademark works best when companies and government tread lightly on the small stuff. Fake taser guns are being used in SL roleplay? Somebody else is doing unauthorized Dune roleplay? I don't care, and the owners of that intellectual property shouldn't care either.

Star Trek and Star Wars ignored or outright encouraged fan use of their IP for decades. It's no coincidence that those two franchises have made their owners billions of dollars over that period.

Bluegum Lunasea

"Better that ten guilty persons escape than that one innocent suffer". William Blackstone.

Ann Otoole

Some companies are well known for not allowing others to use their trademark. Disney is one. I just visited 2 different malls both that appear to serve the child avatar business and they were full of nothing but trademarks and characters from Disney, Harry Potter, and some other companies that don't auth trademarks.

It is places and people like this that represent lawsuit bait. And lawsuits are not good for Second Life so these people need to stop.

So hey I have an idea. All you metaverse reporters contact Disney and ask them if they authorized all the Disney stuff for sale in Second Life and see what they say.

Mitch Wagner

"All you metaverse reporters contact Disney and ask them if they authorized all the Disney stuff for sale in Second Life and see what they say."

I'm a metaverse reporter. Why would I want to do that? I don't see that as producing any results that would be interesting to my readers.

Ann Otoole

My point has been made.

stun guns

"Suit Pertains To Sales Of "Taser" Guns In SL Roleplay Area, Names Since Changed At Lindens' Request" that's farcicality. We can find taser guns anythere, i also bought one from Electronic Gadgets last months.

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