Enforcers of Dune: Frank Herbert Estate Targets Dune Roleplayers In Second Life

Vooper Werribee atop a disputed sandworm

The Second Life community boasts numerous roleplay groups based on well-known intellectual properties. Variations spun from the narratives of Star Wars, as here, and Star Trek, as here, abound. Many are extremely large; by one estimate, for instance, the number of Residents roleplaying in settings derived from John Norman's Gor novels approach 50,000. Among the smaller of these is a group dedicated to Dune, the classic Frank Herbert sci-fi franchise of novels, movies, and other IP. Their leader, Vooper Werribee, counts 130 members who enjoy roleplay in the sands of an Arrakis based in Second Life, taking on the personae of sandworm-riding Fremen, Harkonnen-hating Atreides, and so on. (He believes only 20% of these are currently active.)

Notwithstanding those paltry numbers, last weekend Werribee and other members received legal notices from Linden Lab via Trident Media Group, a New York literary agency which maintains the Herbert Estate. "In particular," the notice reads, "Trident Media Group has complained about your use of characters, concepts and other material associated with 'Dune' in the Second Life environment." Those include roleplay locations entitled "Sardaukar Mask", "Fremen Domain", and "Bene Gesserit Retreat". The Lindens' notice ordered Werribee and his group to remove such titles and objects from Second Life within two days, or the company would do so itself.

I made two attempts in as many days to confirm this notice with the Trident agent listed in the notice, but have not received a reply. However, I did receive a confirmation from the Lindens (full statement below.)

So this is perhaps the first publicly confirmed case of an SL roleplay group finding itself under fire for alleged IP rights violations. In any case, Vooper Werribee does not dispute Trident's right to file such a notice, though he finds it "quite intriguing how this has manifested itself in a somewhat obscure setting when as far as I can see Star Wars and Star Trek-based roleplay sims do not seem to have suffered the same intellectual property enforcement." Then again, both of those franchises have a history of allowing their fans to create derivative works, as long as it's not defamatory, and no profit is made. (Werribee tells me he's never made a profit from his desert sim, only charging rental fees to help defray land costs, but has still lost several thousand dollars owning it.)

And where do the Lindens stand on Second Life roleplay based around unauthorized IP? They sent me this statement from their legal team:

"We're impressed by the creativity of role-playing games in Second Life and believe that they're an important part of the inworld social experience. When intellectual property owners notify us of concerns about fans' use of their intellectual property, we pass these concerns along. It's our hope that the parties will communicate directly to resolve their disagreement in a way that respects intellectual property while continuing to offer great experiences for fans and gamers in Second Life."

By the time I visited the Arrakis of Vooper Werribee, however, his version of Dune had been duly renamed. He did, however, maintain the uniform of an Atreides. I asked him if he planned to remove his remaining Dune-esque objects from Second Life.

"No," he answers. "We've made all the compliance changes we intend to now. Basically we've removed the words 'Dune', Bene Gesserit, Atreides, etc. from as many object names and descriptions as we can find. But we still intend to keep the place as a 'generic' sci-fi desert planet with spice mining. And still intend to roleplay here." Ironically, he tells me Star Trek roleplayers have expressed an interest in using it for "first contact" scenarios. "Some Star Wars players are interested in using the place as a 'spice mining' base," he adds. "As Star Wars has 'spice'."

"The spice must flow?" I suggest.

Vooper Werribee laughs. "It sure must!"

Update, 4/16: In comments, open source guru Richard Stallman offers some trenchant observations, which include questions about references to "intellectual property", which actually subsume numerous types of legal claims. For clarity's sake, I'm posting the full infringement notice sent by the Lindens' to Vooper's real life email address:

Subject: Re: Notification of Trademark and Copyright Infringement Received by Linden Lab

Linden Lab has received notification from Trident Media Group, LLC, the authorized agent for the Frank Herbert Estate, that you have infringed its trademark and copyrights in the science fiction novel and film “Dune.” In particular, Trident Media Group has complained about your use of characters, concepts and other material associated with “Dune” in the Second Life environment.

Linden Lab respects the rights of both Second Life residents, as well as trademark and copyright owners. Accordingly, we ask that you discontinue using “Dune” within the Second Life environment. Please remove all material that makes use of any “Dune” intellectual property. Please remove them from your inventory and all in-world locations, including but not limited to the following:

Object: Map of Arrakis

Object: Sardaukar Mask

Location: Region of Splintered Rock

Parcel Name: The Worm Hole

Parcel Name: Fremen Domain

Location: Region of Desert Basin East

Parcel Name: Bene Gesserit Retreat

Parcel Name: Dune Roleplay: Spice Miner's Hostel

Parcel Name: Dune Roleplay at Splintered Rock

Location: Region of Splintered Rock

If you do not do so within two (2) business days, please be aware that Linden Lab intends to expeditiously remove, or disable access to, the allegedly infringing work(s).

Within two (2) business days, please also provide us with new, non-infringing names for the Second Life groups listed below. If we do not hear from you, Linden Lab will disable your groups until new non-infringing names are provided.

Group: Dune Roleplay at Splintered Rock

Please direct any future communications regarding this matter to Trident Media Group:

[Trident contact info redacted]

Sincerely,

Linden Lab Removal Team

Comments

[Chenin Anabuki]

"Spice mining base" for Star Wars role playing? The Dune sim now turned generic desert planet should really be used as a proxy for Tatooine instead.

[dandellion Kimban]

Some of those IP-protecting-people are just plain idiots. What does it take for them to realize that existence of RP group and themed sims iSL (or wherever) is actually sign of popularity, praise of their work and maybe even profitable?

[Jura Shepherd]

I hope Trident responds because I'm interested in what they think SL actually is. They see a threat where little ol' me sees opportunity. *shrugs*

[Nexus Burbclave]

Chilling effects has a pretty solid FAQ explaining how the rights of copyright holders and fan fiction creators interact. Might be a good read for anyone running or thinking about running a fan RP sim.

http://www.chillingeffects.org/fanfic/faq.cgi

[paypabak writer]

I certainly hope that any publicity I've given Vooper's sim hasn't inadvertantly called the Herbert wolves out! It's disappointing that his estate feels this way. BTW, my father told me when he first saw Star Wars, he was amazed by all the connections with Dune in ideas and places and admired George Lucas for his source of inspiration although the words he used were "ripped off," I believe.

[Iggy O]

Old-Media dinosaurs lash out in their death-throes.

/me sighs. I wish we had so many IP violations that they'd just have to give up.

Send a Sandworm after the lawyers...

[Arcadia Codesmith]

I was once commissioned to create a motif for a SL club based on an illustration that the owner liked. A few minutes of research on the web revealed the source of the illustration. There were licensing terms listed with the image, but they were way out of my price range. So I emailed the rights holder directly, explained clearly and concisely my proposed non-commercial use, and asked for a more limited license. They were a little bemused at the novelty of licensing for a virtual world, and readily agreed to a much more reasonable fee.

If you're going to spend thousands out of pocket to build and maintain a location based on sombody else's intellectual property, it might be worth a little extra time and effort at the beginning to contact and negotiate with the rights holders. Sometimes they just want proper credit and copyright notice. Sometimes they want a token fee so the creators get a little something. And sometimes they'll just say no. "No" before you begin is better than "no" after you've put in weeks or months of effort into a project.

And if you think you won't get caught... remember, it only takes one resident with an axe to grind to report you to the copyright holder. In my experience, there are many, many residents out there with dull axes.

[Foobar Merlin]

I agree with dandellion and Jura. I'm no expert but to me this just seems like a marketing failure of Trident. Shouldn't they be happy someone puts effort and money into spreading their ideas? A kind of partnership would have been much more constructive in this case. They'd have less advertising costs and sl-users who like the Dune-universe would have a nice playground/meeting place.

Hey I'd like to see a sim wide randomly acting sandworm that eats a noob from time to time! :D

[Joelle Tardis]

I personally think it might behoove them to remember that those people RPing in these Sims are their Fan Base!
They are the ones who pay to watch the Movies, Buy the Posters, The Books, the figurines.....

Perhaps the fans should vote with their feet and their Wallets.My family will not be seeing the next Dune Movie.

I remember when Lucas Arts and Sony were much the same about Star-Wars.It did not seem to take them long to realize this was their fan base they were alienanting and to back up and reconsider their position.

Perhaps Dune Fans will be so lucky or perhaps the next great trilogy is lurking in the mind of one of these fans. Lets Hope so and that they are wise enough to remember this expierence and learn from it...

[GC]

I'd begun RPing sporadically in Splintered Rock about a month or so ago, and I never thought it was big enough with enough of a following to warrant this kind of cease-and-desist. I'm frankly appalled that something that is so obviously a nod to the original creator's vision could be deemed such a grand violation of trust or IP. John Norman doesn't do this, and the Goreans even go so far as to use place names straight out of his books.

Why not Dune? Well, a quick search online reveals that Trident licensed the movie rights and there is another film of the first novel in the series due out in 2010. Speculation suggests that Trident intends to open a sim in SL and doesn't want any virtual competition for eyes. My guess is that if there were no film, no one would ever have come inworld to look at the Dune sims. There are only two associated with Splintered Rock and Vooper can barely afford to keep just those two running, so why else would Trident give a crap?

From what I hear, this is not the first time that Trident has filed complaints about Dune-related items. RPers out there might recall Last Unicorn Games. Last Unicorn had licensed the Dune moniker for gaming purposes long ago under reasonable terms. When they brought out a Dune-based RPG, WotC (aka TSR) bought Last Unicorn to gain those rights and distribute the game themselves. Trident raised the licensing fees to the point where it was grossly unprofitable to release it. Even GURPS Dune lives on only in fleeting online posts and the full rules can only be gathered from multiple sources.

Simply put, Trident is killing their own market. No Dune items produced by those with a passion for it means no way of passing that passion on. Putting out bad movie after bad movie is the road to hell for the franchise. If I were the Herbert estate (I am of course not), I'd fire Trident and go with a company more accommodating to the fans. No fans = no business.

Yeah, I'm angry about it. I was a fan and I would have seen the new movie. Now, maybe not. Not if they're going to continue to treat the fans the way their track record shows.

My $0.02.

[BB]

I do know several members of the Herbert estate and they are very nice, kind, friendly people! I doubt they are even aware this has happened! BUT how is this different from the content theft violations we all scream about in SL. Is it ok if we do it but not if they do? Just curious...

[Nexus Burbclave]

I suppose one solution would be to convert the build into a fair-use protected parody, complete with greedy IP lawyers. :)

[Ann Otoole]

It isn't necessary to use exact reproductions and words to get to role play. Everyone interested will know what is what anyway. You will never get to a good excuse for IP infringement.

That being said it is sad to see Dune has officially made it into the membership of dying entities that must resort to attacking fan sites with lawyers. You can always tell when something is in it's wriggling near death phase. It is when they no longer have any revenue streams left so they turn to lawyers.

[cube inada]

There is original scifi in SL... and it allows for profit by its viewers under licenses much better than the falicies of CC or the not undertstanding old media lawyers;).

Cube Inada

[Hamlet Au]

"a quick search online reveals that Trident licensed the movie rights and there is another film of the first novel in the series due out in 2010. Speculation suggests that Trident intends to open a sim in SL and doesn't want any virtual competition for eyes"

Others have suggested that as well, GC. On the other side, a big new Star Trek movie is coming out next month, and a Trek MMORPG is expected later this year. Same with Star Wars, which is getting another MMORPG from BioWare, probably later this year. As far as I know, though, neither franchises have sent their reps after SL roleplay.

[YP]

There seems to be a lawyer for everything nowadays.

It's a wonder there is any content at all in SL.

I'm just waiting for someone to say they patented the prim.

'You have two days to get rid of them all!'...Oh dear...

[Iggy O]

I am personally upset that the first Dune film did not--as I once read--feature Salvador Dali as the Emperor....I thought that memory no more than an errant neuron at play until I poked about in Google and lifted this from Wikipedia:

"In December 1974, a French consortium led by Jean-Paul Gibon purchased the film rights...[and] planned to film the story as a ten hour feature, in collaboration with Orson Welles, Dan O'Bannon, Salvador Dalí, Gloria Swanson, Hervé Villechaize and others (whom he nicknamed his "seven samurais"). The music would be composed by Pink Floyd. Jodorowsky set up a pre-production unit in Paris consisting of Chris Foss, a British artist who designed covers for science fiction periodicals, Jean Giraud (Moebius), a French illustrator who created and also wrote and drew for Metal Hurlant magazine, and H. R. Giger."

Damn, that would have been a head-trip. Dali, Pink Floyd, Orson Wells as the Baron, Moebius and Giger?? Who'd need SL? I'd hook myself into a Barcalounger before a huge screen, arrange for sequential deliveries of pizza and Thai food, and and never return until my money ran out.

[chris]

They will soon, CBS Viacom will want the JJ version of Trek to rule for new MMO licenses, And they will have to crack down on SL to get a higher value for it.

Lucas, well they are basically retarded online and just live off Lego and Hasbro. But when another MMO on Star Wars tanks(sony's sucked) and even Bioware cant save the "old Republic", they will also finally notice the money made, and the deluted market value on their IP, and that Linden has profited from it for 6 years.

Linden hiding behind the DCMA, while selling DUNE/TREK/Wars items on the SLX for USD?

Sue em all!lol

[dandellion Kimban]

and there is another film of the first novel in the series due out in 2010. Speculation suggests that Trident intends to open a sim in SL and doesn't want any virtual competition for eyes

Wise man would enjoy formed group of fans and organized sims, find a way to pump a bit of money in the existing infrastructure, get into the game and enjoy the fruits. Fool will annoy the fans and try to put a lot of money in another empty sim. Why all those marketing people never learn to use common sense?

[Sasara Klaar]

Sadly, I am going to add another much loved creation to my list of IP that will never generate another centavo from me. The bitten hand no longer feeds.

When will they learn?

[BJ Tunwarm]

Sounds Trident's lawyers are justifying their fees, doesn't it? It's pretty hard to see how a RP group with a dozen individuals undercuts a copyright and it is free publicity for the franchise. Going after SL is probably more of sign of how little interest there is in Dune right now more than anything else.

[Sigmund Leominster]

It is interesting to speculate on the "why" of this case. I guess the first is that Trident are employed by the Herbert Estate to protect the Herbert IP. A cease-and-desist against a sim of 130 people, while seeming pointless, will be worth a chunk of change to Trident. So long as they can show the Estate that they are actively pursuing IP protection, then they will be paid. So the "why" in this scenario is "because we're paid to do it."

The second is the more intriguing idea that the Herbert Estate may be looking to creating its own MMORPG in the future. Despite the ubiquitous predictions of pundits that virtual worlds are over, I suggest there is a significant potential for an enterprising company to create and sell a Dune(R)-based world. In this scenario, the "why" is "because we are going to do something ourselves" and , as has been mentioned, "we want to minimize competition."

It is, of course, possible that the folks who run the Herbert Estate do not know of this, but they could easily grant permission if they wanted, without having any significant impact on their IP. Provided the sim owners stick to a few rules, they could easily carry on with the SL game.

In truth, the sad thing is that it is the sim owners who are breaking the law and Trident who are in the right. It's a classic example of where "Law" and "Justice" have no relationship. Legally, Trident are the good guys - but to the average man, this all stinks of injustice and pettiness.

But then life - both real and Second - sucks, and then you die.

[Peimike Priestman]

This is one person's opinion. There are a couple of simple truths in this tale. Neither of them is particularly edifying.

The Herbert estate and its agents are legally entitled to take action. Frank Herbert's original creation is their property. If the family is as nice personally as has been mentioned above, then I suggest they are ill served by Trident.

Trident Media Group are not required to demonstrate any of the enlightenment of their competitors who manage IP and fan bases, and there is no law against stupidity. Trident Media Group has demonstrated a lack of commercial understanding and disregard for the Herbert family's DUNE fan base compared to its peers operating the Star Wars, Star Trek and Gor properties to name a few. There is also a D'ni world happily existing in here from the Myst games. Perhaps Herbert's estate should be put in touch with an enlightened IP management arm.

The Linden Lab quote in the piece sounds lame. I wanted to say it sounded little better than Pontius Pilate washing his hands just before the flogging and crucifixion, but that would be a tad sTrident.

The amateur enthusiasts have sustained, grown and built this place, and its significant economy to the point of being a multi-million dollar cottage industry of artisans and consumers. Linden now speaks frequently of commercial content providers. The amateurs, regardless of the content they create (sci-fi, fantasy, adult, mature) will become progressively marginalized to allow the more profitable commerical content providers unfettered access. Structure and form will be created where once there was spontaneity and free form. It's already underway.

This is a personal observation on well documented new market development tipping points. Early adopters are ground breakers. The corporate scale client whether a corporate user account or a commercial content provider, is extremely risk averse. It is a second entrant preferring to leverage an initially proven concept or market.

Sci-Fi and fantasy fan sims abound in here. They are created by amateurs; amateur programmers/builders and amateurs of the law. Linden is happy to take the tier for as long as it is being paid. The sim owner was poorly served when Linden did no more than relay the legal message, appending their own 48 hour compliance limit.

Linden is failing to see its own enlightened self interest in this as well, presumably because this decision track is being run by their lawyers and not their marketing department. However, Linden is trying to market Second Life commercial opportunities to the real world.

At the same time as Linden spends significant sums trying to create and sell their virtual world value proposition for the IBM's and other global corporations of this world, it then misses a golden opportunity to step in and create the same business opportunity for viral marketing to an already established GLOBAL fan base.

The media production companies are perfect candidates to become early adopters of Linden's value proposition. What about connecting directly with global fan bases one on one via their fans' SL sim networks? Market your movies in SL! Let me reiterate. I said GLOBAL fan base. Splintered Rock's denizens are from all over Europe, North America and elsewhere. They have social networks across sci-fi sims in SL as well as friends whose opinions they influence and go to movies with in RL, and they have good memories. That is the norm in SL sims.

Ultimately, I believe SL will be packaged for sale to a media conglomerate so the inventors can achive their deserved payouts. This creation of theirs is a beautiful thing. If they miss this experiential marketing opportunity, they will have left a significant component of their real value undeveloped. (My opinion about the end game.) Instead Linden Labs prattles on in their quote about supporting creativity as they throw the sim owner to the sTrident corporate suits and add a draconian (my opinion) 48 hour compliance order of their own.

In rl, the sci-fi media producing community encourages (financially and verbally) everything to sustain fan base activities down to and including making amateur copies of weapons, uniforms insignia and makeup. They support or sponsor "conventions" with actor appearances and commercial content and language classes (Klingon & D'ni to name but two) Why? It's well established that this amateur activity sells even more merchandise and sustains the franchise by keeping the enthusiasts engaged. It's called experiential marketing.

Vooper merely copied what a layman would regard as current best practice in sl for creating a fan based sim when one looks around at other examples. In point of fact, his is the only remaining sim of four DUNE-themed sims. He has responded to the nastygram by eliminating all reference to DUNE. (Don't carp about should have known, etc. It's experiences like this that one learns from, and IP rights isn't the only lesson being taught, by the way.) The most farcical aspect of this silliness is that Vooper could keep all the DUNE references and use them under a fair use doctine if he wanted to make the sim a parody of DUNE. He doesn't want that. (Neither do most of us, I believe.

The media company is within its rights. Linden is within its rights. But they both have a bad case of dead from the neck up dumbass.

I'm a Fremen on Splintered Rock. The unenlightened can go pound sand (or kiss a worm).

[Richard Stallman]

When I read about how the heirs of the Dune fortune attacked Second
Life users, my first thought was about how nasty and foolish they were
being. My second thought was that the article serves its readers
poorly, when it uses the vague term "intellectual property" to
describe the legal issue at stake here.

The term "intellectual property" is an incoherent muddle: it lumps
together various unrelated laws that do different things. (See
http://www.gnu.org/philosophy/not-ipr.html.) A few of those that use
the term know this, and use it to to spread confusion. The rest think
the term has a concrete meaning, and are just passing along their own
confusion.

The lawyers for Frank Herbert's greedy and foolish heirs are using the
term for malicious effect. Which law do they claim these users are
violating? What does that law actually allow? Which of the users'
practices really violate that law, and which are lawful? The lawyers
hope these questions will never be asked, so they use the term
"intellectual property" to mask them.

When Vooper Werribee and other roleplayers use the term, however, they
put themselves at a disadvantage. It looks like they never demanded
answers to those questions, but rather took for granted that they were
violating some unidentified law. People who believe -- mistakenly --
that there is a law of "intellectual property", which prohibits all
sorts of imitation in a broad sense, are likely to be intimidated out
of their legal rights. I wish I had been in time to urge them to
break out of the harmful mode of thinking which "intellectual
property" encourages.

When Linden Lab uses the term "intellectual property", it is a
cop-out. The requirements of copyright law and trademark law are
totally different, and both are totally different from patent law --
to name three out of at least a dozen. To treat them the same makes
no sense. Linden should discard its one-shape-fits-all policy about
"intellectual property", and replace it with thoughtfully design
policies appropriate to these various laws.

When the article uses the term, it becomes uninformative. Good
journalism should answer the question "what", as well as "who, when,
where and why". if all you "know" about some issue is that it
concerns some "intellectual property" law, you don't really know
what's going on. The first step in writing about the issue is to find
out what.

[Crap Mariner]

PONDERING: "The second is the more intriguing idea that the Herbert Estate may be looking to creating its own MMORPG in the future. Despite the ubiquitous predictions of pundits that virtual worlds are over, I suggest there is a significant potential for an enterprising company to create and sell a Dune(R)-based world. In this scenario, the "why" is "because we are going to do something ourselves" and , as has been mentioned, "we want to minimize competition." "

Is Dune's following big enough to sustain such a thing?

If so, I'd think Gor has a bigger appeal online and John Norman's heirs might take a page from Brian "Prequel Whore" Herbert's playbook.

-ls/cm

PS: Okay, fine. I like the prequels. But there's a point at which you get tired of the "let's take a step back again" - Harkonnen amoeba fighting the Atriedes amoeba for supremacy in the Pond Of Corrino.

[Hamlet Au]

Thanks for commenting, Richard. For clarity's sake, I updated this post with the text of the notice sent to the Dune RPers, which complains of "Trademark and Copyright Infringement". You're right that the latter term "intellectual property" is too broad to be bandied about so readily, but then, that term was also used in the notice. I assume the Dune-related proper names the RPers were using have been trademarked for games and other ancillary products. If you happen to drop by the blog again, I wonder, what alternatives would you advise the Lindens to practice?

[Vooper Werribee]

It's very heartening to read the expressions of support for the Dune roleplay community in Second Life and in particular thank you to Professor Stallman for his comments on intellectual property.

I'd like to re-iterate that the sim is still open and the community there is still playing more or less as they were before we received the notices from Linden Lab. We don't use certain terms in our roleplay any more, not because we're afraid of being sued, but because we don't want to encourage others to name objects, groups or land parcels in such a way that they may get a notice from Linden Lab in future requiring them to rename said objects, groups or parcels within 48 hours. Personlly, I found the notice from Linden Lab much more worrying than any threatening letter from lawyers would have been, because I know that the Lindens have the power to 'pull the plug' at short notice on something I and many others have invested a lot of time, money and energy in creating.

After reading the comments expressed here my feeling is that the various laws that are designed to defend copyright, trademarks and the amorphous 'intellectual property' are increasingly looking like a product of the 20th Century that are 'not fit for purpose' in the 21st. My plan is for Splintered Rock roleplay community to still be around when the laws catch up with the sort of things that people are doing in the metaverse (and elsewhere on the net). Let's see! :)

[Spooky Caligari]

Honestly, it's Trident's intellectual property, they have a right to do with they want with it. I don't understand where all this indignation is coming from. This isn't like a fansite or text-based MU* or something being shut down. This sim is a place in an actual economy that has the potential to make real money (even if it isn't currently) using intellectual property that isn't theirs. Trident is looking after their own financial interests and I can't fault them for that.

[Marc Mielke]

Umm...Mariner; I think John Norman's still alive, so his heirs might find speaking up a tad presumptious ;-).

IFAIK, Herbert was pretty much like this when he was alive. He was contacted by the heavy metal band Iron Maiden when they wanted to do a song titled 'Dune', and was kind of a prick about it. They still did the song, mind you -- 'To Tame A Land' off the 'Piece of Mind' album.