Thursday, November 08, 2012

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Judge Issues Summary Judgement on Second Life-Based Copyright Dispute Between Virtual Animal Breeders

Amaretto Horses Ozimal Bunnies Second Life

Some two years after the dispute began, we have a summary judgement in the copyright dispute Amaretto Ranch Breedables, LLC v. Ozimals, Inc., two companies that produce virtual breedable animals in Second Life. (Or as I love calling it, Bunneh v. Horsie.) Tateru Nino has a short summary and a .pdf copy of the judgement from Charles R. Breyer, Senior US States District Judge. (Who as it happens, is brother to US Supreme Court Justice Stephen Breyer, which suggests some interesting "Dude you will not believe the case I just ruled on!" conversation over Thanksgiving.) 

"This is a copyright case between business competitors who sell virtual animals in an online simulated world known as Second Life," the ruling begins. And here's the core of Breyer's conclusion:

Because Amaretto has not established a reasonable likelihood of facing copyright infringement liability, the Court finds that Amaretto lacks standing to pursue its remaining claims; it also finds that the possibility of harm is so speculative that the Court would not exercise its discretion to rule on the declaratory relief claims even if the threshold standing requirements were met. Accordingly, the Court DENIES IN PART Amaretto’s motion for summary judgment as to the declaratory judgment and copyright misuse claims, and DISMISSES those claims for lack of subject matter jurisdiction.

I'm not a lawyer, nor do I play one on the Internet, but my layman reading makes me think it'll be very difficult for this lawsuit to continue forward.

It also strikes me as establishing a legal precedent for future lawsuits similar to this one. The passage stating that "the possibility of harm is so speculative that the Court would not exercise its discretion to rule on the declaratory relief" seems to suggest that the judge is noting (at least in part) the difficulty of discerning harm in the competition between two kinds of virtual animals that breed. Lawyers and legal scholars reading this, please tell me if that's the gist, or better express it Comments!

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Melanie

From what I know Ozimals lost the lawsuit and they have to pay Amaretto for all lawyer cost and damages they did to them

Adeon Writer

Meanwhile, I've been having fun with the many other breedable games in SL that have popped up while these guys were too busy having fun.

Arcadia Codesmith

I'm not a lawyer nor a legal scholar, but I'm not reading broader implications in this case beyond the fact that you can't copyright an idea.

Cube Republic

Wow never knew this was going on. Absolutely sounds like Ozimals are complaining over nothing. The concept of breedable pets does not belong to them. Chickens were here first were they not?

Ajax Manatiso

With this court decision it appears they both have equal rights to lag a sim or bring it to a crawl along with the other sims with which the original sim shares a server. The crapulation continues .....

Pussycat Catnap

You folks in the comments have it backwards.

"Amaretto has not established a reasonable likelihood of facing copyright infringement liability"

Its not Ozimals that failed, but Amaretto seems to have failed to show a reasonable likelihood of infringement by Ozimals.

This ruling is over the counter-suit.

Amaretto was suing Ozimals in this ruling. The case name even says so. Case names are:

plaintiff vs. defendant.
- So that tells you right there that Amaretto was suing Ozimals.
It only flips in things like appeals - when a defendant makes an appeal against the plaintiff, or, as here, a counter-claim.

Going back to Hamlet's original article:

"which started when Ozimals filed a DMCA takedown notice against Amaretto through Linden Lab, alleging that aspects of the breedable horse were copied from the breedable bunny. This dispute escalated after Amaretto filed a counter DMCA notice and copyright lawsuit."

- Last sentence there.

This means the counter-claim by Amaretto has failed to get a summary judgement. It does not mean the case is over.

Summary judgements are ultra rare. They only occur when the situation is so obvious, the court finds there is no need for a trial. That's something Courts normally cannot Constitutionally do. To get one, the other side has to have essentially conceded the floor.

To get a summary judgement, there cannot be -ANY- material / relevant to the judgement facts in dispute.

Ozimals would have had to agree they were violating Amaretto's copyright for a summary judgement to go through.

Summary judgements can also happen when the question is made moot by the law.

If A sues the government for damages from destroying A's opium fields... the government can get a summary judgement because the law answers the question... A had no right to have those fields.

So what has happened here is that Amaretto's counter of copyright infringement needs to be brought to a full hearing -BEFORE- any action can be taken. The facts for it are in dispute.

Now we turn to the rest, and we find the judge has also ruled Amaretto's case lacks merit to being with:

"not established a reasonable likelihood of facing copyright infringement liability"

This means that whatever evidence was put forth, was deemed worthless. Its not the role of the judge to to decide on the facts of the evidence. But they do rule on the validity.

If you walk into court and say "the devil made me do it" the judge will find that invalid evidence. Likewise if you claim 'their business infringes on mine because its the same industry' without showing any evidence of how they -specifically- infringed.

But if you walk into the court and say "the blood on that knife is not mine nor the victims" the 'fact finder' rules on that - at the end of the case. Likewise if you say 'their business infringes on mine because they copied these scripts here, that texture there, this 3D model, and used the same 'breeding genetics' plan as shown in my charts here.' - then this is real evidence that the fact-finder decides on at the -END- of the trial.

This case failed to get to that stage, because the judge found there simply was no valid evidence.

Pussycat Catnap

(I think I changed a bit of what I was saying up there midway through and forgot to edit upwards all the way. I started writing for an injunction because my mind was on that subject, then realized this was a summary judgement... :) )

Jim Tarber

I think it's a huge win for Amaretto. The judge is throwing out the counterclaim because he's saying Ozimals has no original claim to make. The judge is saying the counterclaim is moot. Not for any of the reasons I expected (you can't copyright a concept) but because he's saying the work for Ozimals was not exclusive anyway. They don't own it. So the whole counter-claim is moot.

Page 6 of the PDF: "Ozimals therefore is not a co-owner, but a non-exclusive licensee without
standing to sue for copyright infringement."

"Here, Amaretto faces no serious prospect of copyright infringement liability" ... "As explained above, Ozimals cannot sue for
infringement." ... "Accordingly, Amaretto has failed to demonstrate that it has standing to bring its declaratory relief claim."

So the counter-claim fails, but it's because Amaretto is completely protected from Ozimals.

And he even says the previously agreed settlement might be discarded too. Top of page 5: "That settlement agreement may or may not have any force at all. A later agreement in the same case expressly stated that it “supersede[d] and replace[d] any previous” agreement in the case, and the new agreement made no mention whatsoever of the ‘661 copyright or joint ownership. See Ex. B to Kearns Reply Decl. (dkt. 131). The Court need not rely on either agreement or treat one as operative over the other, because the outcome would be the same under either (or if no agreement had been made at all)."

Whoa. So not only does he say, very clearly that the counter-suit is moot because "Ozimals cannot sue for infringement", but also that the original settlement might not "have any force at all". Looks like the Amaretto lawyers really screwed up with their interpretation of the law.

He's refusing the Amaretto counter-claim because "the plaintiff must have 'a real and reasonable apprehension that he will be subject to liability if he continues' the allegedly infringing conduct." And that fails completely, only because Amaretto need not fear Ozimals legal action at all because they cannot sue because they have no claim at all. Whoa.

jewel

Bunneh wins! yay! =)

(afterwards, bunneh & horsey talking....)

Bunneh: yay I win! so horsey, why the long face? :P

Horsey: Doh! it's wabbit season! fire!

Wraithlin Constantine

Hamlet, don't you think your post is a little biased? You point to Amaretto not having a case as the core of the judgement, however you neglect to note the reasons why the claim is moot. Your omission causes many who might not have bothered reading the document to simply assume 'Ozimals won' and 'Amaretto lost', when that's not the whole story.

Jim Tarber gets it right - it's moot because Ozimals has no right to file a DMCA claim on something they don't own 100%.

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