In Stroker Lawsuit, Linden Lawyer Rejects Class Action Status, Claiming Most Residents Don't Register SL Content

Virtual World News has a very intriguing update to the lawsuit filed by Stroker Serpentine and Munchflower Zaius against Linden Lab, alleging the company allows and enables content theft of their material by other Residents. VWN's Joey Seiler (who's currently a Harvard law student), notes that the Lindens are represented by Joseph C. Gratz of Tangri LLP, who also represented Google in a number of intellectual property cases. Even more interesting are the grounds by which Linden Lab rejects Serpentine and Zaius' bid to make this a class action suit on behalf of other content creators who believe they've been a victim of content theft:

[B]ecause "only a handful of Second Life residents are putative class members, as most Second Life residents do not choose to register their trademarks and copyrights, as the class definitions require."

I'm not a lawyer, so can't comment on the legal validity of that argument, but I can say the underlying claim is probably true -- not many SL content creators file a copyright or trademark on their content. (Entrepreneurs like MadameG Zagato are an exception to that rule.) In an NWN survey, for example, only 16% of SL content creators said they've registered their content. Making this yet another good time to bring up advice from virtual world law expert Ben Duranske: If you're serious about protecting yourself from content theft in Second Life, register your work with the US government.

Photo of Gratz from durietangri.com.

Comments

[Ari Blackthorne™]

That law suit is frivolous in my mind and frankly: I side with Linden Lab on it. As for "protecting yourself" requiring any kind of registration: not true. Does not require a registration to protect yourself. What is required is "prior art" - a means to prove it existed "before" and that it was yours - that you were first with it.

The "requirement" of registration status has to do with the class-action status of the suit - and as to that part of the story, I am with you; I am no legal-eagle so I don't know how that particular claim holds-up.

As for registration: HAH My SL Account name is a trademark and currently registered with my state (still contemplating on going to national, but why? A registration is not even required - so long as you have prior art and willing to defend it.) And so, anything and everything I create in SL (which is easily provable as "prior art" is automatically "registered" as my trademark is attached.

[Adric Antfarm]

Where is the Virtual News link?

Oh, and what Ari said. Spot on.

[Ian Wright]

This is nothing more than a vain attempt to raise publicity, and continue to build notoriety for Stroker's company and products. Someone recently told me, a lot of the original content creators are seeing a savage reduction in sales. This could be down to a more equally distributed amount of people creating content, also a new era of higher quality of content creation.

The trademark issue is bogus. The protection suite is phoney. The whole thing is a waste of time and energy.

Rubbish.

[Hamlet Au]

Sorry, added the proper link to VWN.

Read the link with Ben's lecture notes, Ari.

[Pavig Lok]

It's a pity that the Stroker case has dragged on so long and become so litigious. Early cases set important precedents for IP law in virtual worlds, and we owe Stroker a debt of gratitude for knocking out some of the details there. It firmed up the boundaries of IP protection and kept the rules simple and clear - that virtual IP is covered by the same rules as non-virtual IP.

Unfortunately in turning the fight into a class action Serpentine and Zaius are invoking he more rubbery elements of IP. I feel they are unlikely to make headway, and in the process will burn some of the legal clarity that was found in the earlier case. It was fairly obvious from the outset that there was not enough community solidarity to push forth a class action. The linden system does not incorporate firm declarations of IP rights, nor do many of the residents.

Either way this case goes it'll generate further confusion about the status of IP rights in virtual worlds. If Serpentine and Zaius win then we have a precedent for minority class action. If they lose then we will have eroded our potential IP rights as a community. It would have been better if we'd played this one out with a more solid case and wider community support. Just my two cents tho'.

[Malcolm Kit]

Ari is so confused about the difference between patents, trademarks and copyright that I would take any and all advice from him with a very large grain of salt.

For one thing, the term "prior art" relates to patents -- inventions basically -- and not trademarks. "Art" in this sense means science, as in "state of the art." "Prior art" means inventions that existed before the inventor invented the thing being patented.

Furthermore, trademark registration protects the name and logo under which you market your products. It does not protect the products themselves, without the mark, which *may* be protected under copyright. Copyright exists in theory from the moment you create a .jpg file, or what have you, but in practice may be very difficult to enforce without registration.

[Malcolm Kit]

Ari may also wish to ponder why the lawsuit was limited to registered copyright and trademark holders in the first place. A lawsuit drawn up by actual lawyers.

[Ann Otoole]

Interestingly despite LL's position in respect to only recognizing registered copyrights they act on unregistered copyright DMCA take down orders as required by law. And nothing is stopping anyone that wants to be in the class from registering anyway. They hold the copyright from inception anyway.

Some people in SL claiming to be experts about identifying ripped content don't even know when you shift drag copy a wig that the original creator remains as the creator so why is anyone paying any attention to them? lol

Still too early in this case to be making any calls.

[Anonymous]

In the USA, intellectual property rights are automatically granted once the intellectual property is made. It is not necessary to "register" intellectual property. This attorney's claim is bunk, and a clear attempt at making the lawsuit seem impossible. If Stroker continues he will win and the lawyers know that. All they can do is try to deter him into giving up or keep throwing money into the suit making it last as long as possible until he relents.

[Tateru Nino]

Intellectual property rights are automatically granted, but a court will not permit a suit to go ahead unless your trademark or copyright is registered.

You can do it at the last minute as you file or join a suit, but unless you do it your participation as a plaintiff on the basis of being a rights-holder is denied.

[Wizard Gynoid]

I have noticed few avies who assert their copyright with the traditional Notice of Copyright in the form: Copyright © 2010 Wizard Gynoid. (I have done so myself only in a few exceptional cases.) The law doesn't require the Notice. Protection exists even without the Notice, and even without Registration, which is a formality that documents your claim. Read all about Copyright here: http://www.copyright.gov/circs/circ1.pdf

[Malcolm Kit]

*** In the USA, intellectual property rights are automatically granted once the intellectual property is made. It is not necessary to "register" intellectual property. ***

Which is utterly irrelevant. The class of plaintiffs was DEFINED BY THE PLAINTIFFS' ATTORNEYS by the as those WHO HAD REGISTERED their copyrights and trademarks. The Lab's lawyers are simply saying not a lot of people fall into that category.

Furthermore, people keep bringing up this "you don't have to register your copyright" thing, thereby only proving that limited knowledge is a dangerous thing. It's true that you don't HAVE to register your copyright. However, unless you register it PRIOR TO THE INFRINGEMENT YOU CANNOT COLLECT STATUTORY DAMAGES. You are limited to *actual* damages, which good luck proving.

[Malcolm Kit]

From your own reference, Wizard: "If registration is made within three months of publication of the work or prior to infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise only an award of actual damages and profits is available to the copyright holder."

In other words, no registration = lots of luck with that. You'll have to prove how much money you lost, then pay your own attorney's fees out of that.

[Jumpman Lane]

I'm with Ari on this one. I side with the lab. Stroker is known to bandy threat litigation since BEFORE he registered SexGen(R) as a trade mark http://secondthoughts.typepad.com/second_thoughts/2006/07/index.html

his current lawsuit against Linden Research is full of holes which will be duly exposed in a court as frivilous. such is the price of vanity!

[Toxic Menges]

How does this work in respect of people who aren't in the US?

[Corcosman Voom]

If I'm reading the law correctly, to prove that a class exists does not require that a majority, or even a substantial minority, of SL content creators have circumstances simlilar to the representative plaintiff. It will be up to the judge to rule whether or not a class exists. I suppose that will get down to the evidence of how many "a handful" is. I imagine every class action suit has a similar decision made at the beginning of the suit.

[Arcadia Codesmith]

If the Lab could just separate its head from its hindquarters long enough to focus some serious attention on the issues, there would be no need for them to lawyer up.

But I guess it's easier to hire a shark than, you know, innovate.