Open Forum: Have You Received A Legal Notice In Second Life From A Real World Company?

It's almost a benchmark of success: when IP lawyers start coming after users of a Web 2.0 system, you know it's gone big time.  A couple weeks ago at the Virtual Worlds Expo, I shared a book signing table with lawyer Benjamin Duranske (Benjamin Noble in SL), author of the new book Virtual Law: Navigating the Legal Landscape of Virtual Worlds and the blog Virtually Blind.  While we were waiting to sign copies, he told me a surprising thing:

Numerous Residents have contacted him, he said, reporting that they'd received DMCA and other cease-and-desist legal notices from major real world companies, alleging trademark and copyright violation by their in-world content.  These would arrive in the form of Instant Messages and notecards, purporting to be from company lawyers and other staff.

For obvious reasons, Ben wouldn't name the specific companies, but told me it included "a dozen brands your readers would recognize."  Up until that point, I only knew first-hand of a single dispute: last year, a major toy manufacturer sent a DMCA notice through official Linden Lab channels to the owner of an in-world nightclub, alleging trademark infringement.  (The club's name was similar to one of the company's major product lines.)  I was unable to confirm this directly with the corporation's law firm, but a couple sources convinced me it was a legitimate notice. 

Of course it's not surprising that companies would protect their intellectual property, I'm just amazed that they would take the extra step of paying people to create SL avatars and send them in-world in search of allegedly infringing content.  (At least now, when Second Life's user base remains far smaller than, say, YouTube, MySpace, and other Web 2.0 systems with user-uploaded content.)

While Benjamin himself doesn't practice law in SL, there are other lawyers who do.  Shortly after talking with him, as it happened, I met a colleague of his-- MissWhimsical Magic, a law student who works for the Virtual Intellectual Property Organization, a non-profit that offers IP-related legal help to Residents.  Would they help them with DMCA disputes involving major real world corporations? 

After consulting with her boss, Ms. Magic contacted me in-world with her answer:

"VIPO will represent any individual in an intellectual property related matter in the absence of jurisdictional and conflict related restrictions," she IMed me. "VIPO's first reaction to any inquiry is to invite the party seeking assistance to our offices for a sit down in order to discuss their issue and its surrounding facts. It is possible that, given the correct set of circumstances, VIPO would represent an individual resident who was served with a DMCA notice by a big company."

So there's potential assistance for SL content creators who get served notice, too.  But I end this post on a question, because I'm still unclear how widespread the legal notices has become.  Has it happened to you or your colleagues?

Update, 9/30: Per Ms. Magic's request, added her RL name.

Comments

[Seven Shikami]

For a few months, I was selling playable reproduction video games based on classic 8-bit era game titles.

Then I realized this sort of thing was inevitable and I really enjoy not being sued, so I stopped selling them. I've reworked almost all of them as 100% self-copyright-owned original games in a retrogaming style to avoid legal hassle.

All the content creators who make Naruto avatars or copy furniture designs from Ikea and such are gonna be in for a rude awakening one day. Just because you're flying under the radar right now doesn't mean you aren't intruding on someone's airspace. If your creativity can stand on its own two legs without the cultural reference to prop up your sales, you're better off going that way before it's too late.

[Ann Otoole]

Anyone arrogant enough to be blatantly ripping off logos and trademarks needs to be punished.

I suppose there can be quasi innocent people that did not realize they were violating a trademark or copyright and might be bewildered but those would be the exception given what I have observed.

I've seen content creators that are vocal and outspoken against so and so stole this or that skin or texture defending someone blatantly using a big popular company's logo with a business name on it that makes a mockery of the company. I mean it is so bad if it were my mark I would be relentlessly suing for damages times three.

I have seen people blatantly using one of the biggest entertainment companies on the planet's logos, trademarks, copyrighted information, and even the very builds themselves are replicas of trademark content. I have seen third party websites selling pirated virtual merchandise and making a direct commission at the time of sale yet they try to hide behind safe harbor. I'm not sure they have safe harbor since they are the selling agent and collect a commission at the time of sale. I have always wondered about that.

How dumb must you be to blatantly rip off a big company that has the lawyers and cash to make an after dinner snack of you? I mean in one big company's case they have literally thousands of lawyers with hundreds assigned directly to brand protection. How dumb must you be to try to rip them off?

I'm not surprised at all. These people are so confident that they post text and pictures about it (the stolen marks/content) on blogs and websites that are search engine indexed and these companies are always spidering to aggressively defend marks. Some companies have loyal fan bases that consistently report violations. Then the discovery process will require at least one account to come in world and document violations.

I don't see it as surprising at all.

What I continue to be surprised about is people so utterly blatant about their operations thinking they are untouchable behind that computer screen. That kid breaking into Palin's email thought he was a smart cookie too. How long did it take for them to find him? (son of a democrat politician rofl. I'm sure that is going over like a lead balloon) Nowhere to hide. The internet access service knows who you are and it does not take that long to track someone down.

Why not make your own brand and logo? Is it really so hard to google on potential business names?

I guess we all need to file for trademarks now. More money out the window during hard times.

[YP]

I can't believe companies going after a virtual item in a game for gawd's sakes, come on.

So it's illegal to make yourself a replica of a real world item or is it when you start to sell copies?

If it's the case why don't the companies come into SL, employ builders to build their items and sell them legitimately?

Or is it too much trouble?

Surely it's more lucrative for them to go after big time counterfeiters in the real world then it is going after gamers who trade in pixels?

[Robyn Fabre]

I'm not surprised in the slightest that Real World companies are going after people who are making money off their products inside Second Life and other virtual worlds. After all it's still copyright infringement even if it's only made of pixels.

[Sophrosyne Stenvaag]

Thanks for your coverage of VIPO - they sound like a terrifically useful service.

And, woo, three IP hotties! :D

[Seven Shikami]

YP, these people aren't trading in pixels. They're trading in MONEY. Whenever you make a replica of a real world item, a copyrighted character, or scan in some artwork -- and then SELL it for L$ -- you're profiting off the IP of someone else.

It doesn't matter how big or how small it is. See my post above: Just because people are flying under the radar right now, just because they think they're making peanuts, it doesn't mean the lawyers will not come out to feed once they know about it.

Someone I know personally RL was drawing cute little cartoony VW Bugs and selling them for a dollar each. It was just a fun side art project, but that didn't stop Volkswagen from hitting her with a C&D and a letter recommending she settle out of court by paying "the profits you have made OR $5000, whichever is MORE."

I say again... if your content creation can't stand on its own two legs without stealing someone else's IP to keep it upright, you are doing it wrong.

[IPtastic]

What is Misswhimsical Magic's real life name? I need a cute intern.