Wednesday, September 16, 2009

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New World Newsfeed: Second Life Content Creators Sue Second Life Creator Linden Lab

Munchflower Zaius

MediaPost News: Second Life Sued For Allowing Sale Of Impostor Virtual Goods

Yesterday, top Second Life content creators Munchflower Zaius and Stroker Serpentine filed a class-action lawsuit in U.S. District Court against Linden Lab, for allegedly allowing and enabling content theft of their material by other Residents. Rather, the avatars' real life owners, Shannon Grei of virtual fashion brand Nomine and Kevin Alderman of adult entertainment empire Eros LLC, respectively, joined the lawsuit on behalf of their businesses. Reached in-world yesterday, Ms. Zaius (right) declined comment, though Serpentine suggested to the Alphaville Herald that the plaintiffs did not expect monetary damages, so much as better protection of user-created content: "This is about a pattern of ambivelence over six years. We want fundamental change in the regard to the very content and creators that made SL what it is today."

Stroker Anti Content Theft PSA

To see Zaius and Serpentine listed on this lawsuit is not surprising; in 2007 they were co-plaintiffs in a copyright and trademark suit against a fellow SL user. And Serpentine has been a passionate advocate of virtual IP rights against content thieves in-world (as with this public awareness campaign) and a loud, frequent critic of Linden IP enforcement policies, which he considered lax and inconsistent. Their lawsuit, therefore, is effectively a trouble ticket sent via the US court system.

Does their case have merit? That's for legal minds and the court to discern, but three points stand out to me:

  • Can Vuitton Make the Lindens Liable? In a recent trademark/copyright lawsuit, Luis Vuitton won $32 million in damages not against someone selling Vuitton knock-offs, but the Internet Service Providers who hosted the knock-off sites. "The jury agreed with LV that the ISP defendants should be liable," notes Keith Kupferschmid, "because they knew of the large amounts of counterfeiting of LV product taking place on their sites and failed to take proper action to stop it." IANAL, but it seems possible that Serpentine and Zaius' law team will invoke this precedent, and argue the Lindens didn't respond forcefully enough to content theft complaints.
  • Will Success Give Content Creators' More Protection -- Or Barriers? If this lawsuit is successful from the plaintiffs' point of view, it may actually be bad for the content creation community, especially small-time creators just starting out.  A successful suit may pressure the Lindens to add greater legal restrictions and liability waiver protections to the content creation process. (In real world economics, it should be noted, threats of lawsuits generally hurt small businesses, who can't afford to insure themselves against liability, and benefit established corporations, who can.)
  • The Ultimate Irony of User-Created Content. It's unlikely that Second Life would be as successful as it is, without talented content makers like Munchflower and Stroker. At the same time, it's also unlikely that either of them would have the career they do, without Second Life's success. (Previous to his career as a virtual adult content entrepreneur, as he relayed in a recent documentary, Kevin Alderman was a plumber. As Stroker Serpentine, however, according to MediaPost, he's grossed over $1 million dollars in content sales.) Or to put it another way, if Linden Lab had not managed to develop a successful virtual economy, he would probably not have the money to sue Linden Lab.

What's your take? And while it's difficult in such a fractious case, please keep it civil.

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Ordinal Malaprop

I suppose one thing that this will help determine once and for all is whether LL really does have a DMCA safe harbour defence or not. I would not bet that they do, particularly after the xstreet buyout.

Impalah Shenzhou

There is a proverb in my country that says (free translation): "don't bite the hand that gives you food". Even dogs are smart enough to follow this simple rule. Linden owns SL, Linden has its own laws.

On the other way seems stupid to me the demand to "advance a technology or pay me for the possible loss". Damn! I can suit then any car company for not advancing electrical engines an for losing my life (with my lung cancer caused by old gasoline engines), for example.

There are many, better, MANY more ways to pressure a company to implement a technology before using lawyers. Maybe the "poor as a ratt" people like me couldn't spend thousands in marketing campaigns or in R&D projects, but, sincerely, a business with $1 million dollars in content sales...

But anyway, it's my vision from a country where people solve their conflicts mainly arguiing (sorry if not well writen) in the street before going to court.

Crap Mariner

LL talked big on protecting intellectual property rights like they talked big about the "killer ap" of music... and has delivered very little but talk.

Good luck, Stroker.

-ls/cm

Amael

I really don't like the method that is being used here (for the reasons outlined in the article - a lawsuit is too heavy handed and can have dangerous side effects) but I do agree wholeheartedly with the principle behind the action - to get LL to start taking content theft seriously and actively do something about it (i.e. not retrospectively when an infringement is reported)... I guess a lawsuit is what it takes for a company to sit up & take notice these days rather than listening to your community who’ve been complaining & requesting support for months.

My personal experience with having some of my content cloned (discovered just last night):

- Can't use DMCA as person immediately deleted the inworld evidence so all I have are screenshots
- There's no section in Abuse Report for reporting suspected cloned content
- There's no section in Support Tickets for reporting suspected cloned content

So I've had to submit all my evidence via Support Ticket under "removed listings or content in the XStreet SL Marketplace" (closest section I could find). I could be waiting up to a week for action to happen, meanwhile the perpetrators will be busy covering their tracks.

Why isn’t there a simple stupid "Report suspected cloned content" option in either Abuse Report or Support Tickets? (i.e. an option to have a mod check it out rather than going the full DMCA route)

Why aren't accounts (particularly ones that are new with no payment info) immediately flagged for inspection if they create hundreds of items (either in world or in inventory) in a short period of time?

Maybe after this lawsuit, LL will start considering these options...

Adric Antfarm

The collective amnesia that enables us to go from bitching about oppressive Xstreet polices one month to cursing them the next because they do nothing is worthy of a research grant.

Selling your items on the grid is neither a right nor compulsory. Joe the Plumper has been speaking out on these issues since Johnson was in the White House yet he stays well aware of the risk.

On the risk itself, while I agree he is no doubt being ripped off, I wonder if is at level estimated since it's possible (in theory) 5995L is more than this uncertain economy will bare for humping tools.

Seeing Copybot as the only tool mentioned, I took a quick peak at the cool kids forums to see the usual mass of "I used and got banned" or "I can't figure it out" or "my copy came with booku spyware". Then they get flamed and told it's not really supported at this point. I am sure someone can use it and not get caught, but they are quiet types.

Oh, they are busy on ThugLyfe which is nothing but trouble if it gets around. Time for a NWN investigation.

David Crespo

Should we applaud this type of behavior?

Especially when we're all-so-keen to moan when an RL brand stops an SL designer from profiting on their IP? Surely, this is the same thing? Double standards, I would say Yes. Especially when designers use the moniker of 'inspired by' or 'homage', they're still stealing. They are making real US dollars. fact.

My concern here:

Stroker has taken this kinda legal action before, against an individual designer. He also got no end of publicity and notoriety as the 'sex seller of choice' in Second Life. His previous case was featured in blogs and he even made a TV appearance. This also spun him a good deal of sales and fame. I just hope this isn't a marketing stunt. Also, he is biting the hand that feeds him! We know he isn't happy with the 'new era of SL', hence why he broke away and organized a rival to the SLCC this year? This could be dangerous, surely it could also mean that LL just kick him out of SL. Literally GAME OVER.

My other concern.

The SL product market has moved on. The new Xstreet integration has changed the way people buy products. This means the incumbent designers are finding it harder. I should know my sales have dropped off by 40% since Xstreet was integrated. People are not browsing shops, new users are directed and buying directly from the catalog etc.

We've also seen a new level of professionally polished designer come into SL. This new breed are probably RL 3D designers. Therefore, this isn't a hobby craft for them. This is reflected in the amazing new objects, machinima and general increase in quality of the last 12 months. Could this be a reason the Old Guard are getting their feathers ruffled?

Lastly...

Stoker's old job? You know Mr Au, maybe your misspelling of 'plumber' wasn't far off the mark? This could be all about him being a [sic]Plummer or as it's known 'one who cleans and preens their plummage in public'.

David


skribe

You can get more with a kind word and a two-by-four than you can with just a kind word.

Metacam Oh

The only way to get Linden to do ANYTHING is to sue them.

When they fail to do anything over a course of several months what is he supposed to do? The Lab is now a 100+ million dollar company, with a huge world now with a lot of money going through it they need to be responsible for their world, not sit back and say oh well, or preach from the clouds and do nothing.

Jane2

Absolutely this is the right way to go...if IP is legally protected, then it is a little more than "trouble ticket" worthy to protect. And legislated protection requires legal action, not complaining on blogs about DCMA and Linden Lab's TOS.

David Crespo

Metacam Oh, do you have an example of Linden springing into action when they've been sued? Or a case when it's gone to court and anything actually changed?

David Crespo

The reason I ask, is not to flame this argument. Surely, this needs a consortium of designers. The power of a collective petition would be far more powerful and attention grabbing? Not for Stroker, but for the design industry in Second Life?

Then again, would it build brand Stroker/Eros by doing so?

Impalah Shenzhou

Jane, the way is to suit the offender, not the messenger.

Will you suit the DVD manufacturer for being used to store your stolen work?

One thing is to protect my work, the other is to blame who can pay. Like using common sense and think with the ass.

Thorn Witrial

When LL failed to deal with CopyBot even though merchants and designers have been *begging* them to, when they failed to remove Cryolife even though the creator of that viewer admits it's main function is to steal, when LL failed to deal promptly and consistently with stolen, copyrighted designs even when handed reams of proof...

When they failed to do all of these things, they have succeeded in bringing this on themselves.

Ann Otoole

When your customers develop the generally accepted opinion that the only way to get your attention is by way of lawyers then it is time for your company to make hard decisions. If this type of lawsuit blindsides a company then some of the hard decisions involve the people it employs that is failing to comprehend and report upward the demands and communications of the customers. Allowing employees to remain in certain positions so long they create their own little fiefdoms is an error.

That said my general opinion is that it is time for LL to make the miscreants and thieves understand they are no longer welcome in Second Life and will be prosecuted for unauthorized network access. Let the big men with bad crew cuts that have badges, guns, and nightsticks deal with the problem. It won't take long for the miscreants and thieves to judge Second Life no longer the place to be and migrate somewhere else like locusts.

tommy

Youre not a "success" IF you're a rl plumber?
More SL paid for fake crap con job stuff.

Candice

he was a plumber LMAO, they're the biggest rip off merchants in the known universe. He made millions from LL and now he turns around and sues them, what an idiot. He has two shows with this case, shit show and no show

Here's what will happen, *If* LL’s hand is forced (and I doubt it), here’s all that will happen, there will be a settlement, a ton of changes, new SL laws, IP protection, change to TOS etc etc and we will all adjust, life on the grid will continue as normal,. The drama mongers predicted the end of the SL over the open sim debacle, are we all still there of course we are!

Hamlet Au

Please keep it civil. The only reason I mentioned Stroker once being a plumber is to emphasize how radical his change of careers has been, which probably would not have been possible without SL. Absolutely no diss on plumbers, it's an honorable and important profession. (Though Joe the Plumber, I dunno.)

FlipperPA Peregrine

For clarification, Stroker wasn't "just a plumber" - he ran his own plumbing company, with employees, that he sold after his success found in Second Life... which was initially a hobby.

This decision wasn't made lightly by either Stroker or Munchflower, as both have attempted many different avenues to have their concerns addressed. They do not feel that those concerns have been taken carefully, and I can't blame them at all for trying to protect their careers and futures - we all would do the same in their shoes.

I'm glad so many comments I've seen on this have a crystal ball with which to see the future of such an undefined and untested area of court law.

Regards,

-Flip

Adric Antfarm

Last time I saw the water rising and over instead of going down in the toilet bowl, a plumber was pretty damn important to me. Nice jab on JTP there Huffington Post alum...

As much as it causes me physical pain to go with the adult, Hamlet is correct in there is no shame with having a profession that does not involve a keyboard. My parents were working class and I was until filling all those sandbags and buffing floors awakened something inside me on how unjust and dangerous it was so I got out looking for keyboard work.

Hamlet hardly outed anyone by the way unless Wiki is a secret spot (and you missed the movie).


Rifkin Habsburg

Much as a sympathize with anyone who has problems fighting IP content thieves, I have some concerns over this particular action. I've posted those concerns on my blog.

Dog Food

Content Creators feed Linden Lab and Second Life with their content. Linden Lab provides the plate.

People need to stop seeing Content Creators as ungrateful dogs. Linden Lab feeds indirectly on the user created content through land sales and Lindex sales.

Remove all the content from Second Life and Linden Lab would make zilch.

Linden Lab gnaws on the fleshless hands of content creators daily!. :)

I personally wouldn't sue Linden Lab, but I don't have lots of products being ripped daily, products which Linden Lab is indirectly benefiting from.

Caliandris Pendragon

Flip
I absolutely refute your assertion that we would all do the same in Stroker and Munchflower's place. I would not.

I presume that the reason they have money to blow on lawyers to pursue this case and think it worthwhile to risk it, is that they have made enormous profits from SL, which was initially a hobby.

For myself, I have made a little money, but nothing like as much as the sort of creator who has made enough to give up the day job. I have gained so much that can't be quantified... friends, relationships, knowledge, education, horizons widened, collaboration, community, entertainment. Would I like to make more money... yes. If I had, would I attack Linden Lab legally to protect it? Absolutely not. I feel sad that someone is willing to put the world I really deeply care for at risk, simply because the squillions they've made don't satisfy them.

I, for one, would NOT do this.
Cali

Arcadian Vanalten

If it seems heavy-handed, that's probably b/c LL has thus far failed to respond to a myriad of less drastic requests and communications of concern. In that case, a heavier hand is, in fact, not an inappropriate response.

The article notes "the plaintiffs did not expect monetary damages, so much as better protection of user-created content", which sounds pretty reasonable to me. I don't have a dog in this fight; I'm not a content creator and never have been, but even I'm very aware of the ongoing struggles and frustrations residents have had w/ getting LL to help enforce the right of ownership that content creators have per the TOS. This is not a new issue, and it's one that LL has consistently failed to attend to, even though they've had ample notification and several perfectly reasonable suggestions over the years I've seen in the various blogs & forums on this.

Really, this isn't an unforseen consequence. If you keep ignoring folks, either they try harder to get your attention, or they give up and leave. SL would be pretty bland w/o content creators, so I'm glad some are staying in the fight. I think it's most unfortunate that content creators are left w/ this resort, but they DID try all the less drastic measures to rectify it as far as I can see. Perhaps if LL pulls its head out of the sand (or other prepositional phrase of your choice), this can finally be resolved, but the ball's in LL's court.

Gwyneth Llewelyn

Well, there is an alternative. While most expect the court to push LL to enforce IP more aggressively, there is the slight chance that the exact reverse might happen, namely, that LL falls back to the "carrier" status by changing their ToS and saying that they respect copyrights but forfeit all attempts to enforce them without a court order (e.g. a DMCA claim) — if you read the Blue Mars ToS, that is pretty much what they say, precisely because they don't wish to be liable for these cases.

Right now, LL tries to have a foot on each side. On one hand, the ToS says they fully respect IPs and the DMCA, and that they can, if they wish, act, but aren't forced to do so. This would mostly mean that residents would have to take all cases to court, often against people that don't exist (literally — their avatars might have been deleted). But they also announced recently that they would start taking harsher measures against copyright theft, create a simplified system to report stolen content, and so on — so they seem willing to act as more active enforcers. This latter change, IMHO, will be the one that Stroker's and Munch's lawyers will hold against LL: they have promised to act and make things more simple in reporting and removing copyright theft, but (in Stroker's and Munch's view) are not doing enough (and since through XStreetSL, LL is also a party to the sale of pirated content, a case might be made that they really profit from stolen content, not only indirectly - e.g. because pirates lease land from LL to sell their stolen goods — but directly, as fees they charge for delivering stolen content), thus making false claims or generating false expectations. And in that they might "win" a settlement. It seems like a very reasonable and probable outcome.

But this might simply backfire: LL might just settle and then announce that from now on, they will do absolutely nothing to remove stolen content but just let people go to court. And stop charging fees for XstreetSL. They're allowed to do that. And it would be worse for content creators, since not everybody has money to file a suit against "unknown parties" that steal content every day.

I don't know, it seems a win-win situation for Stroker & Munch — so they're doing fine — but a lose-lose for Linden Lab and the remaining content creators, unless, of course, they all join the class-action lawsuit :)

On the other hand, I'm glad I understand nothing about US law ;)

Kat

Epic FAIL, he will lose, there is no doubt about it in my opinion.

I agree with an above comment regarding the "no end of publicity and notoriety" he received last time he did this. My personal opinions of the man is irrelevant to the case, but I do believe his ego has gotten the better of him.

Leyla Firefly

Please, keep in mind that all the million dollar content creators are mostly marketing from Linden Lab. Only very few make that amount of money and over a really long time.
Anshe Chung is perfect example, nowhere are remarks of the amount of that money going back to Linden Lab (tiers, uploads, employees and their fee for trading Lindens).

About "the hand that feeds us", they feeds us basically nothing, we make stuff, we upload it and pay for it, we pay for our sims/land/parcels, we pay for xstreet, we pay to cash in.
For all that we get a very bad service (i can't remember a time in SL without issues after 2006). Which hand feeds who here?

About Blue Mars: yes, they are not responsible, but when you join their developers team, you know ALL content is controlled by Blue Mars and they have your rl info :)


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