Virtual Law Expert Ben Duranske on SL Content Theft

Chestnut Rau has a good summary of a recent in-world presentation on legal issues and SL content theft by virtual world law expert Benjamin Duranske (Benjamin Noble in SL), author of Virtual Law: Navigating the Legal Landscape of Virtual Worlds. Among the highlights Chestnut reports: "He remarked that the class action suit recently brought against Linden Lab regarding content theft was very well done", and "suggests content creators make sure they register their copyright with the government because in the US doing so increases the ability to sue for damages and recover legal costs". Emphasis mine, because I strongly second his second point. Shockingly, in a recent survey, 85% of SL content creators polled say they have not registered their works. So I'll put it even more bluntly than Benjamin:

If a Second Life content creator wants to show they're actually serious about protecting their SL content, they should register it with the US government.

Anyway, read the rest of the summary here, with more from Phaylen Fairchild.

Image credit: A slide from Benjamin's SL talk, from Dusty Artaud's Flickr stream.

Comments

[Ordinal Malaprop]

Well, registering copyright on an item in the US can help in a court case involving copyright on that item in the US. Given that even most content creators in the US are not practically capable of engaging in such a thing, let alone those outside of it, and if the infringer concerned is not in the US it is pretty much entirely pointless, I am not surprised that most people do not bother. I wouldn't, and don't.

I suppose there might be a point if it could be used as a deterrant - a symbol that one is serious about defending IP - but I'm not sure how many people it would impress or would even notice before ripping off content.

That is the whole problem here; the legal system really doesn't provide an effective defence for individuals. Individuals have to rely on larger organisations to have rules and defend those rules.

[Arcadia Codesmith]

If you can register the entire contents of a store as a collection for a single fee, it's cheap to obtain registration and probably worthwhile.

If each piece has to be registered individually, then even a few pieces can add up to a prohibitive expense except for the most successful creators.

I don't know which is the case under current copyright law in the U.S.

[coco]

Hamburger Helper;\
You did it again..

You dont HAVE to IN ORDER to SUE..

The comment made by the LAWYER was that it
"increases" the ability to sue for damages and recover legal costs.

[anon]

FYI, in the US, registration is required prior to suit. You don't need to register to own a copyright, however.

[Chestnut Rau]

Coco if you read what I wrote carefully that is exactly what I said and exactly what Hamlet quoted here.

[Wrath]

(I think coco might be referring to the graphic accompanying this article...)

[Chestnut Rau]

The graphic is Druanske's slide from the presentation.

[Anon]

As pointed out in the presentation, you have to register (if you're in the U.S.) in order to bring a claim, and more importantly, you need to register in order to get statutory damages and attorney fees -- and that's what gives a potential claim some teeth.

See below from U.S. copyright office...

Do I have to register with your office to be protected?

No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

Why should I register my work if copyright protection is automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

[Arif Emor]

At Thirty bucks a pop and a 6-week confirmation wait period, I'd say that musical copyright registration is no longer cheap or fast in the U.S.

The issue raises a lot of questions: does virtual content count as true intellectual property, since it can't be experienced tangibly in the physical world, other than by sight and/or hearing? Most of the virtual pieces we're speaking of are not in the form of a musical work or a work to be read or performed before an audience. On which registration form would a virtual couch or pair of pants or whirlygig be registered?

[coco]

Ah, even worse.
A Lawyers SALES presentation perhaps?

[Ordinal Malaprop]

"It's expensive, it's slow, you don't need it to sue and it doesn't fundamentally change the provider's analysis" would be a better summary.

[Billio]

$30000 vs $1 you get if no reg sounds good 2 me.

[Pyewacket Bellman]

The "real" legal system is broken - so save your registration money.

If the gods aren't able to solve this with god tools - perhaps there's only the objectivist solution -

Go on strike.

[Chez Nabob]

Little bit of misinformation here, mostly in the comments.

1. In the U.S., you do need to register your copyright to bring a case against someone who has infringed your copyright in a court of law. Copyright is automatic as soon as the work is created. However, if the work is not registered with the copyright office you cannot enforce your copyright in court until it is registered.

2. If you register with the copyright office in a timely fashion (within 3 months of publication or before any infringement begins) and someone infringes your work, you may bring a suit to court. Registering allows you to sue not only for actual damages and the profits the infringer made on your work, but also for statutory damages and attorneys fees.

3. You can group your filings under a single filing fee. You do not have to pay the $35 electronic filing fee for every single work you wish to register with the copyright office. These collected works must meet one of the two following criteria:

A. The collection is made up of unpublished works by the same author and owned by the same claimant

B. The collection is made up of multiple published works contained in the same unit of publication and owned by the same claimant.

I do not know if there is a limit on how many works may be submitted as part of a collection as I have never tested it to any kind of extreme, but I have filed multiple works under a single filing fee with no problem.

[Ordinal Malaprop]

It is not necessary to register copyright before going to court in the US. It just puts one in a better position.

It *is* though necessary to register in a timely fashion as you describe in order to obtain statutory damages, and those would probably be preferable given the sums involved, if the matter ever did get to court and won.

I wasn't aware of the multiple registration, that is useful information and does make the process cheaper.

[Ordinal Malaprop]

Oh, I think I see the issue here. It's necessary to register *at some point* before starting your lawsuit, but you can do that at any time. It's not necessary to have registered before the infringement; one could just register as and when one is planning to go to court. Sorry, I should have been clearer as to the situation of registration I was talking about.

[Naoki Ninetails]

Perhaps someone could organize a regular class on how to simply register one's SL collection as per this article's suggestion. More would be willing to do so if we knew WTF to actually do, where to go, what to expect, etc.

[Siddean]

What about everyone else in the world who uses Second Life as a platform off which to run a business? Sure, we can register their copyright in our own countries, but it would be nice if the writers of these articles recognised the immense international community in SL instead of focusing on one group of people.

[Siddean]

register *our* copyright, not *their*. Apologies :)

[ELQ]

Siddean, nobody is ignoring one group of people over another, the speaker simply is from the US and is a lawyer dealing with US law. No doubt lawyers from all countries would be welcome to share their expertise - the fact is, the merchants and creators in SL need their expertise.

[Saffia Widdershins]

Two points worth thinking about:

1) Registering copyright in most places other than the US does not have a cost.

2) As the Lab have offices in other places than the US, it might be possible to initiate actions in those other places - but that would only apply if you were taking out a class action against the Lab.

3) A registry/database of content created the the Lab/residents could also be used as evidence of copyright, I would think.

[Arif Emor]

Official website - Forms for U.S. copyright registration:
http://www.copyright.gov/forms/
But I don't know if there is an existing appropriate form for virtual world content.

[Ferd Frederix]

In the original seminar "Duranske said the best thing to do if your work is stolen is to file a DCMA with Linden Lab.", but he suggests you copyright it. I do not agree with Chestnuts emphasis of the 2nd part, at all.

Afif, a photo of your creation would suffice for Copyright. as the law is very broad. For example, 'copying' a Meeroos is prohibited if it is recognizable as a Meeroo. Copybot and outright identical copies are not necessary to infringe. It does not matter if you upload a painting, or create a digital form such as mesh or sculpts, or even make 8-bit pixel art, if it resembles a Meeroo, you can get sued. That's because a Meeroo is not a generic horse or other animal, but a new creation. But if I make a brown horse, and you make one the same size, shape and coloration independently, that is not a violation.

If the content was a script, then the copyright for s/w would apply. I see no reason to file for scripts, as scripts are probably the only thing impossible to copy in SL. However, it is not true of Open Sim.

The major problem as I see it is we can get sued from outside of SL far more easily than we can sue someone else. One reason that it does not easily work the other way is because SL creations have zero legal value. Linden dollars are legally worthless. The Linden T&C says so. Lindens are not money. Thus it is impossible to prove economic damages for stolen SL items. Remember the Ponzi bank scheme that forced Lindens to ban banking? Legally, the thief never stole one dime. He kept the cash, and if I remember correctly, it was in excess of $100K US Dollars. Converting Lindens to dollars through Paypal does not magically make Lindens legal tender. After they are converted, its real money. Not before. A rough analogy would be a 'copyrighted email address' if such a thing was possible. The characters of the email address are valueless. Yet you can trade the email address of say, Lady Gaga, for big dollars. If I stole her email address from you, you could not sue me for economic damages.

Filing a copyright could help you get statutory damages and lawyers fees. That may be a solution for someone making lots and lots of money outside SL, and has a side business inside, such as the Bloodlines company does. If they spot their stolen work, they could, and should, go after the thief.

For the small guy making a few bucks in SL, or even a few ten thousand USD, copyright is pretty useless, IMHO. I think that if you have large, provable damages in real money, and the thief has enough assets that you can get back the money you will spend on attorneys court costs and such, and you can identify the culprit, and they are subject to US Law, and you can find an attorney licensed for Federal Court willing to take it on, in the same state as they are, and you live in that same state, then you should probably get a copyright and go after them. Otherwise it is not worth it.

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