Richard Stallman On Linden's "Intellectual Property" Policies

In recent weeks, a couple New World Notes posts inspired an interesting e-mail conversation with a very interesting figure: Richard Stallman, founder of the free software movement, and the original author of the General Public License, which the Second Life viewer code (like much software) is licensed under. He first visited this blog to take issue with the way Linden Lab and the Frank Herbert estate handled a dispute with an SL-based Dune roleplaying group -- and to be sure, also disagreed with the way I described it as an "intellectual property" matter, since that term conflates copyright and trademark law, legally two very different beasts. (A topic Stallman has written at length about.)

"[I]n this case," he explained, "Herbert's estate agent is asserting both copyright and trademark claims. That is very important. These two laws are totally different issues. One claim could be legally valid while the other is not. One claim could be ethically valid while the other is not. To write about them clearly, it has to be done law by law." (Linden Lab's terms of service, it's worth noting, does note there are various types of IP which may relate to user-created content, though the Linden's infringement notice sent to the Dune roleplayers, reprinted at the bottom of this post, does not specify which of them is being violated, or how.)

"I suspect that the trademark claims are bogus intimidation," Stallman went on. "I recently checked with a lawyer and was told that in the US the heirs of Conan Doyle cannot use trademark law to stop people from publishing their own stories about Sherlock Holmes (or reprinting Conan Doyle's stories, no longer in copyright.) I am not a lawyer but I expect this point about trademark law applies to Dune also." Linden, he argued, "[S]hould get rid of its 'intellectual property' policy and set forth an appropriate policy for each law. Since the laws are different, I expect that these policies will be different too.

"Linden," he continued, "should also adopt a policy of defending its customers against intimidation that tries to stretch the law. Linden has lawyers and can afford to stand up to intimidation when its customers can't. Each kind of intimidation directed at customers of Second Life will affect many different customers, over time."

How about the recent trademark lawsuit filed by the Taser corporation against Linden Lab, provoked by unauthorized use of the "Taser" brand by SL users? There, Stallman (who says he has no particular opinion of Second Life), had a decidedly different take:

"I think the Taser company has a valid point here," he wrote me. "Commercial sale of a 'virtual' product by Linden is not the same issue as use of fanciful names by users. However, Taser is being stupid in the same way that the Herbert heirs were stupid. I suggest that Linden approach the Taser company and its competitors, and ask each one how much it is willing to pay to get its product's name used in Second Life."

Like Stallman, I am also not a lawyer, but as he's a monumentally influential figure in the development of collaborative software (which Second Life itself basically is), and thus it's an important perspective on Linden Lab's existing policies around this topic. What's your take on Mr. Stallman's take?

Stallman photo from his Wikipedia profile.

Comments

[qarl]

hm - but doesn't lucasfilm use trademarks to enforce protection of "Luke Skywalker"?

or, even if it's some bizzare twisting of copyright, i suspect Herbert's estate will use the tactic... as it seems to work.

[Ran Garrigus]

With respect, I think Mr. Stallman's suggestion wrt to Taser shows that he's not really aware of the facts of the matter, since he seems to indicate that LL is the using misappropriating the Taser trademark ("Commercial sale of a 'virtual' product by Linden...")

The idea that LL can monitor SL enough to act as a gatekeeper in regards to what RL trademarks are allowed onto the grid (for a fee) is just not feasible. Users create the content, and it's users who are misappropriating trademarks. The number of shoes I see from high-end creators with Nike swooshes, Adidas stripes, and Converse stars alone is just ridiculous. LL can't manage it all, but for Mr. Stallman's suggestion to work, they would have to be able to do so.

[Hamlet Au]

@qarl: Yeah, I had wondered if "Paul Atreides", "Fremen", etc. were also trademarked, but couldn't determine that. However, even more key, perhaps, the Linden takedown notice doesn't determine that either.

[Arcadia Codesmith]

"I suggest that Linden approach the Taser company and its competitors, and ask each one how much it is willing to pay to get its product's name used in Second Life."

It seems like just last week that I was musing:

"But maybe we're looking at it from the wrong angle. Perhaps the machinima makers ought to be soliciting product placement deals instead..."

This has been an issue with corporate presence in SL - they contract with some firm to build them an island, throw out a few virtual goodies, and then sit there and wonder why customers aren't thronging there.

Take another tact. Make available a free limited license for utilizing your trademarks/copyrights in Second Life, publicize it, provide source materials to creators, and watch people make and distribute a bewildering array of stuff with your brand plastered all over it.

Coke did something like this. So why aren't Pepsi's marketers all over it?

[frank dellario]

It may seem silly for companies to stop people from using their trademarked brands but they do need to prove use and avoid their trademark from becomming a general use term, therefore voiding their trademark (silly but true).

Google attemping to stop use of the noun google as a verb ("google it") or same with Xerox ("Xerox that for me") are meant to prevent their trademarks from becoming a common, general use term, which are not trademarkable. Call me crazy but sounds like a sign of darn good marketing and a great service/product. They should be rewarded. All I can say is, "Don't tase me bro."

[radar]

His whole premise is wrong, as LL is not using the trademark "Taser" and has nothing to do with it other than some of the residents in the virtual world owned by LL are in fact doing so.

He's confused.

[qarl]

@radar - i think the issue is that LL bought xstreet, which did indeed use "taser" in some product descriptions.

[radar]

Did XStreet use it, or did SL residents listing products on XStreet use it?

[Foobar Merlin]

As far as I know the Taser company was concerned about their reputation when a connection to sl is present. That's just laughable to me. As if their reputation wouldn't be totally ruined almost. Every video I saw or headline I read about tasers ruins it more.
I'd say the Taser company is confused. Hope them bro's won't tase me now... XD

[Schmo]

@radar - Given that LL owns Xstreet, LL is making money each time one of the virtual Tasers is sold (Xstreet's 5% commission). According to the EFF's summary on trademark infringement, LL could be liable for contributory infringement if they "continued to produce or distribute a product knowing or having reason to know the recipient is engaging in trademark infringement." See http://ilt.eff.org/index.php/Trademark:_Liability.

[radar]

@Schmo Understood, but it could also reasonably be argued that LL hasn't owned XStreet for long, and has not finished scouring for DMCA violations yet also.

[Tateru Nino]

It's hard to argue that Linden Lab is not acting as a retailer via Xstreet. The way it's doing things makes it tough to argue that it is just a host or a mediator.

Generally if there's potential violations and liability, you'd sort that out during the acquisition phase before you, yourself, become liable for anything.

[Ann Otoole]

Lawyers will always win rofl. Armchair wanna bee legal expertise is epic fail.

Get it in court and we will see what the actionable results are. Till then all talk and little substance.

I really want to see LL be taken to court over the widespread trademark infringement in Second Life such as Adidas, Converse, Warner Brothers, and The Walt Disney Company trademarks and copyrights. I really do. Only then will we know which side gets the right to say stfu.