Horsie Victorious: In Virtual Animal Copyright Dispute, Amaretto Gets (Temporary) DMCA Immunity From Linden Lab; Analyst Raises First Amendment Concerns

Last month I noted the virtual animal copyright dispute between Second Life content creators Amaretto Breedables (which makes pretty SL horses) and Ozimals (which makes adorable SL bunnies), and days before Christmas, the story got more interesting.  On December 21, Judge Charles R. Breyer issued a temporary restraining order against Linden Lab and "all persons in active concert or participation with Linden Research" from filing DMCA notices against Amaretto or otherwise removing its content from Second Life. Read the order here. Notably, law professor and legal blogger Eric Goldman writes in a lengthy analysis,

... is that the court's temporary restraining order applies to Second Life (Linden Research), not Ozimals... it seems like the court's TRO may be improperly trying to bind a non-party. At minimum, the court should have explained why it was discussing a TRO against Second Life.

I'm not a lawyer, but perhaps the judge is doing this because Linden Lab is the one who carries out any DMCA takedown notice filed against one SL user on another. In any case, Goldman believes this restraining order raises First Amendment issues:

Passage from the restraining order

Second Life has the First Amendment rights to decide what to publish and what not to publish. If Second Life decides, for whatever reason, that it wishes to kibosh Amaretto's content, it seems improper for a court to force it to do otherwise.

That's a very interesting point. What if this copyright dispute did not involve cute-as-a-button Second Life animals, but hateful-as-stomach-bile racist paraphernalia? In that situation, Linden Lab would want to remove the content for violating its Community Standards against hate speech, but the court would stay the company's hand. Anyway, read more from the expert here.

The restraining order lasts until January 11, when the judge will rule on Amaretto's request for an injunction. Stay tuned, this could get a lot bigger than just a case between virtual pets. Curious sidenote: Judge Breyer, a Clinton appointee who is a brother of Supreme Court Justice Stephen Breyer was an assistant special prosecutor on the Watergate Special Prosecution Force, pressing charges against crimes that caused a Constitutional crisis. Wonder how he feels in the twilight of his legal career adjudicating a dispute between virtual bunnies and horsies.

Image via SL News Extra, which has an interesting post on Amaretto Horses. (LOLHorse text by Hamlet.) Hat tip: Ms. Ziki Questi.

Comments

[Eggy Lippmann]

Second Life is not a publisher, it's a host.
It provides space and software for what authors publish, much like a mall provides people space for their stores and associated services such as mall marketing, security guards and cleaning ladies. Is Blogspot also a publisher now? :P

[Aeonix Aeon]

Essentially the court is putting a TRO on Linden Lab in the manner by which they are known to simply honor DMCA takedown notices blindly. In this case, the courts are deciding that if Ozimals is sending a DMCA to Linden Lab concerning Amaretto, then they are likely full aware that Linden Lab will honor the DMCA blindly and wipe out their competition for them. I believe at this point in time, the courts may be onto something in recognizing this business tactic and putting a stop to it (even if temporarily) while they (the courts) actually review the case before any action (legal or otherwise) is taken by anyone.

As for the impairment of free speech, I hardly believe this is the case. Simply curtailing shady business practices on all accounts while the courts (rightfully) decide what is legal and what is not, while not leaving that decision in the hands of a corporation or rival business to enact justice.

Contrary to popular belief, just because Linden Lab writes it into their TOS, doesn't make it true or legal, and even LL is not above a court ruling.

If anything, the headline for this article should read something like "Ozimals are not untouchable and neither is Linden Lab"

[Rowan Derryth]

I too question the notion that the horses are 'published' material. I'm not sure I would compare a virtual horse and a pamphlet.

[Loki]

im with Rowan on that, Second Life is a digital Product distribution platform now with some very well made content that people want to build business around. I wonder how Apple deals with Idea theft on the App store?

[Loki]

Looks like apple deals with it less dramatically http://livecams-iphone.blogspot.com/2010/07/identity-theft-acceptable-practice-with.html

[Jovin]

Couldn't we just get these lag-nags removed because their constant use of on/off physical prims kills the Physics performance of any sim the dumb things are rezzed on?

Forget IP, let's get rid of them for 'unfair use of sim resources' or whatever the T&C calls it, that must be a rule they are in breach of?

[CarloAntonio Negulesco]

If we're going to bring the 1st Amendment into this; I'd lean more towards the court is protecting the 1st Amendment rights of Amaretto rather than infringing on anyone else's. The court is simply saying "until and unless Amaretto is found in wrong-doing, you have to give them the same access as their competitors."

[Alfonso El Sabio]

Second Life could very well be deemed a "publication" platform...look a little more deeply at what the word "publication" means and this is pretty clear.

People resisted the idea that something on the web was "published" but it's only taken less than 10 years for that attitude to change.

I'm with @Aeonix on this one...

[Ignatius Onomatopoeia]

I know this is some sort of legal precedent etc. etc.

But this will run in mainstream media as "Fake horsies step on fake bunnehs" and once again I'll be telling academic colleagues "My teaching and research left SL last year...thank God."

Maybe LL did educators a favor by kicking us in the teeth.

[Arcadia Codesmith]

The DMCA allows for prior restraint, presumption of guilt, and shifting the burden of proof to the accused, all anathema to American justice.

Insofar as LL acts as the agent of the accuser in executing a DMCA takedown, it becomes party to the action and subject to judicial constraints.

Standard Disclaimer: I'm not an attorney, I don't represent myself as an attorney, and if you get in trouble due to anything I say, it's your own damn fault, not mine.

[Casius Masala]

Linden Lab does not "File DMCA" claims. They are required by law to respond to the DMCA claims filed by others. If they do not respond they are open to legal action.

It is interesting that the Judge is attempting to bar Linden Lab from doing what the DMCA law requires them to do. This highlights the Judge's lack of understanding of DMCA and the poorly written DMCA ruling and is not about Linden Lab's attempt to meet the requirements of the DMCA.

The DMCA as it is currently written does not scale in the world of online media and virtual goods.

Residents who use litigation to settle petty disputes - even disputes with an impact to real life finances - will in the long run damage the community and threaten the fun for everyone.

[Rin Tae]

Reading all this I have the suspicion that LL might be happy about a restraining order like this because now they would be safe from the need to react to filled DMCA notices. I guess they would otherwise be in the danger that if one of the invovled parties files those and demands LL to remove the content they would have to do so regardless of the court not having decided yet (and with this possibly face the danger of a follow on case of the owner of the removed content wanting them to compensate for the losses during the time the content has been unavailable).

With a restraining order in place it might be safer for LL to wait for the courts decission without the need to act on the notice. Now of course I am no lawyer and this is all guesswork but sounds logical enough.

[Corcosman Voom]

I looked at Judge Breyer's calendar when Amaretto's lawyer filed the request for a TRO. It looked like he had at least one other case involving IP theft or perhaps patent infringement (not a SL case,) so the concepts involved won't be foreign to him.

And yes, courts order temporary and permanent injunctions forbidding the application of existing law to particular cases on a daily basis.

I wouldn't expect this case to set a precedent for the manner in which the Lab complies with the DMCA.

[shockwave yareach]

Right now, I can make a texture. Someone else can rip it off the very same day I upload it, claim I stole it from them, file the DCMA and get MY work taken down. Anywhere. What we should be doing is saying that in SL proper, we'll handle it in SL itself. If you get a court to rule differently in RL then LL will obey that court order.

What needs to be done is LL needs to say that whoever uploaded/created an item first gets to keep their product in SL. And unless Real World courts rule differently on the specific DCMA case, that's how it'll be. Accept the TOS like you have to do for stupider changes than this, and lets move on. We need an IPLinden and court of 4 other residents to decide if A copied B's stuff and whose stuff stays or goes -- majority rules with 3 out of 5.

Let's stop horsing around (heh) and address SL theft in SL first, and then let people lawyer up if they want to overturn that decision. If you saw even one courtcase a year, I'd be surprised.