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Friday, July 06, 2012

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Chestnut Rau

The best summary of the story I have seen is by Salome Strangelove http://salomesays.com/blog/2012/07/curious/

stunned by this

"So this is baffling. What we can draw from this is:
1. Gala’s vendors should not have been removed by a Canadian intent letter as part of DMCA procedure because the jurisdiction would be US Federal only.
2. Linden Lab is choosing to act on a letter of intent from a foreign country which has no court action behind it, even though all their own TOS and documentation asserts US jurisdiction in all cases.
3. If Linden Lab is acting on an actual court ordered injunction, there is no record of it on any publicly available database."

I actually believe in this matter its time for LL to take action and directly deal with this issue. Doesn't have anyone some influence at the lab to get them to move their tushes?

Arcadia Codesmith

LL should be able to confirm the earliest upload date and creator for the files in question, which ought to settle the matter definitively.

I don't know how Canadian courts work, but if it were an American court at that point I'd move for summary dismissal and a truly epic countersuit.

Pussycat Catnap

The fudged watermarks and other remnants left on the "other party's goods" pretty much make it very obvious that Curios is the victim.

That said a good friend of mine in RL lost a year's income from his business and nearly went under from a fraudulent attack like this. The other party stole his work, sued him for several million claiming he'd stolen from them - and then agreed to "settle" for a hefty sum.
- What I will say there is that an attorney helping someone engage in this kind of fraud is potentially breaking the law or committing an ethics violation as well. If the case seems to be clearly fraudulent or malicious, look into punitives and into sanctions against the other side's counsel. While conservatives love to lambast "plaintiff's attorneys" the truth is that most western bar associations look at such conduct with an extremely dim view and get very harsh against lawyers that hold people for ransom - when told about it with evidence. But people are often intimidated away from going to them.


Curios should have their attorney look into any possible punitive damages as well - depending on the nature of the correspondence - and sometimes you can even go after the other side's attorney for malpractice, not just the other party, if the case is obviously fraudulent.

Pussycat Catnap

Looks like Hamlet's AFK - two posts from spammers in the comments here. O.o

foneco zuzu

Not a word from Linden Lab on this matter is just outrageous to All content creators!
Can only say, get out of there ASAP!

Masami Kuramoto

I was wondering why LL would keep Gala's assets blocked despite a valid counter-notice from her. The Canadian court action alone couldn't be the reason since the DMCA isn't even applicable there.

But then I found an important detail in her blog that all the Curio fans seem unwilling to talk about. Gala writes:

"I filed a DMCA takedown notice, but when Hush filed a counter-­notice, I didn’t do anything."

The problem is, if you fail to act on a counter-notice like that, your own copyright claim starts looking bogus. This and Hush's follow-up takedown notice were enough red flags for LL to justify blocking Gala's content until a court has looked at the matter - even if it's a court outside US jurisdiction. In any case it is not LL's responsibility to gather evidence and figure out who stole from whom. That's the job of the courts.

And frankly, I find Gala's lack of faith in the US judicial system slightly disturbing. "I had no money to defend my rights" is a BS defense that won't fly in any court of law, because it's like telling the judge that you think he's in someone's pockets. Good luck with that.

elizabeth (16)

from what i have seen of the claim papers filed with the court. it seems that the Hush lady is alleging that all the skins cited in the claim are based off a skin/s originally made by the claimant in 2007 or about

is a big claim that. it may not be true. but if the Hush person believes it to be true then is understandable why they have acted in this way

the Curio lady does have to counter-claim to show that the Hush lady is mistaken. is unfortunate altogether really that it went this far. but is how it goes

Arcadia Codesmith

Are you kidding, Masami? Money is the entire basis of the United States judicial system. Showing up in court without an attorney is a guaranteed loss, but very few people can afford representation. There is a mountain of legitimate fair use and other work that's been taken down because large corporations can use bigfoot tactics against single defendants who are clearly in the right but have no resources with which to defend themselves.

The best you can do is find a shark willing to work on contingency -- i.e. a huge chunk of your potential settlement. And if you're playing defense without a big potential payday, fuggitaboutit. Lawyers working pro-bono out of the goodness of their hearts are all busy being fictional characters on television shows.

Masami Kuramoto

Fair use is a legal grey area. Making false claims under the DMCA is not. And Hush is not a large corporation. If Gala can prove that Hush's skins are based on hers, she has nothing to worry about. If it's true that parts of the Curio logo appear on Hush's textures, this should be a no-brainer to prove, because all the evidence is safely stored on neutral ground: Linden Lab's asset servers.

And if she can't prove it, then she had no business filing takedowns in the first place. In that case she would deserve to lose, because she abused the DMCA to zap her competitors off the grid. Karma is a bitch.

foneco zuzu

Gala is one of the most respected skin creators in Second Life.
I cant believe this problem is happening and for sure I can't believe Linden Lab has no means to clear this matter is a few minutes!
So its silence in regarding this matter, for me is just obnoxious!

Arcadia Codesmith

Don't expect any public announcement from LL. They might incur liability just talking about the case.

Salome

I don't know that anyone who supports Gala is unwilling to talk about anything; the "important detail" being referred to isn't focused on because it's irrelevant to anyone who understands how DMCA works and the practical costs associated with filing civil suit -- let alone international civil suit.

As dense as Linden Lab often is, they're not dense enough to look at a declining to file civil suit as a sign of guilt.

Filing DMCA takedown does not obligate you to go to court; it's a basic assertion of your rights and it forces the other person to assert themselves under their own name in writing. Now, people with gall don't think anything of that, but it does get rid of at least a few scabs who pinch other people's stuff on free accounts and who don't want to put a real name on anything. So it doesn't hurt to try and see if you can solve things by filing an honest takedown.

Going to court is another matter.

Civil court isn't like criminal court. No one provides you with an attorney if you can't afford one. Court costs and legal fees can get big fast, especially with the kind of research and drafting that has to go into getting the real name of a person associated with an avatar, etc and/or proving financial losses for compensation when dealing with a virtual "token" currency. There is no guarantee of getting your investment back. If you go after someone who cannot pay (as is very often the case), you're going to end up at a loss no matter how right you are. We all like to talk big about it being "the principle of the thing" but it's hard to cut off your nose to spite your face when you're just making an average living in the current economy.

Most people don't understand that even the big name designers in SL don't make a lot of money. It's basically just a work-at-home job and you pay double taxes (if you're in the US) because you're self employed. Usually it's enough to make a modest living, but rarely enough to take the risk of going on a long legal battle in hopes you get something back.

Masami Kuramoto

@Salome:
"As dense as Linden Lab often is, they're not dense enough to look at a declining to file civil suit as a sign of guilt."

Any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees.

That's what the law says about frivolous counter-notices. The law also requires the party filing the counter-notice to lower their pants and hand over their privates on a silver plate: name, address, phone number, and a statement under penalty of perjury.

Under these favorable conditions, filing a civil suit against Hush would have been a walk in the park, a piece of cake, and a free ride, all rolled into one, with sugar-coating and a cherry on top. The whole thing wouldn't have cost Gala a single cent!

Yet she chickened out, at this perfect moment. By accepting Hush's counter-notice and allowing LL to restore Hush's assets, she basically revoked all the infringement accusations and wiped Hush's slate clean. And now you, Salome, are telling us that this doesn't mean anything, and anyone thinking otherwise must be "dense", not knowing how the DMCA "works". And the fact that LL is still blocking Gala's assets must be entirely unrelated. A coincidence, basically.

Yeah, sure. I totally buy that. Thanks for your insight, Salome.

Arcadia Codesmith

And here I thought I was the rude snarky one. I stand humbled.

Pan

$7,500 has been raised so far,according to Gala's note sent to the One Voice group

Slurl to event:

http://slurl.com/secondlife/Mesh/43/164/23

Opening dates: July 9 – July 16, 2012

Masami Kuramoto

LL is now featuring Hush in their destination guide. If this is not an encrypted message, I don't know what it is. They cannot possibly be that oblivious.

LL is literally sitting on the entire body of evidence in the upcoming Hush vs. Curio court battle. What are the chances that they know something we don't, but cannot talk about it?

Dave

Masami, you're half correct. The usual DMCA process we're all familiar with is that party A files a complaint, provider has to take down party B's content. Party B files a counter notice then provider puts it back until anything different is ordered by a court.

If the provider has credible notice of a court action underway by party A though, they DONT have to honor the counter notice and put stuff back. In fact they must not until the case is resolved.

DMCA doesnt say it has to be an action in US court. Canadian might just count.

I'm not a lawyer but I'd be looking with a real jaundiced eye at the part of LL's DMCA policy that says to file a counter notice you gotta accept their local courts jurisdiction if you're not in the US.

Innula Zenovka

@Masami... I see LL is also now featuring Curio in their destination guide, too, at https://secondlife.com/destination/curio

What sort of encrypted message about all this evidence upon which they are sitting do you say that might contain?

John Terrence

@ Masami Kuramoto

Even if you have Registered Copyright and somebody falsely files a counter file. EVEN submitting to jurisdiction you better have a minimum of 10-20,000 USD available as a legal fund to instruct and start proceedings.

So many creators even with the said registered copyright cannot always take it to court action.

There is significant risks with copyright cases so most creators rely on the individual infringing not falsely counter filing. However, when they do it becomes a financial and risk of recovery decision versus a right and wrong decision.

Linden Lab has no legal basis to make a determination based on non action, other than just that. No action was taken versus the determination of what that could mean about copyright ownership.

@ Dave by filing the counter file you submit to jurisdiction of the person who filed against you that is not an Linden Lab issue - that's part of the generic DMCA approach. And an important one as for those overseas who counter file if the US court finds against them, the plaintiff can then submit in the court of their country to recover the award under common law or some cases bi-lateral agreements. However the clock ticks so in this scenario as Curio did not initiate proceedings on the counter file, jurisdiction was not relevant. That should be a deterrent for any wannabe false counter filers outside of the US unless you are in a country that is anti copyright.


Kurvy

People seem to want to point the finger at Gala as if she just sat back and did nothing by choice. We're talking about a mater of a few weeks from when she filed her DMCA and Hush then registered her stuff and filed her own. You don't know what happened during that time or what she might have been up against. For someone who obviously doesn't have the means, it isn't unreasonable to think that she was struggling during that time with how to proceed.

Masami Kuramoto

Innula, I followed your link and was redirected to https://secondlife.com/destinations . My first guess was that LL switched to damage control mode and removed both shops from the guide. But that is not the case. At the time I'm writing this, the other vendor is still featured but Curio is not.

Maybe you're right and it doesn't really mean anything. Maybe it's just another case of one hand at the Lab not knowing what the other is doing.

Innula Zenovka

Thanks, Masami. While it's certainly odd that it vanished so suddenly, to my mind the balance of probabilities suggests that's more likely the result of WEB-4678 (regions vanishing from in-world search, which at one point was happening several times a day to some regions in which I'm involved) than someone at LL deciding during the course of Wednesday night to pull it.

In general, I don't see LL abandoning its policy of trying to stay out of IP disputes, at least ones that are being litigated, as much as they can. You'll recall that they strenuously resisted getting dragged into Ozimals vs Amaretto. Quite rightly, to my mind -- the last thing they can want is to be exposed to the risk of time- and money-consuming litigation when its outcome can't in any way benefit them.

Masami Kuramoto

@ John Terrence

As far as I know, the US have put Canada on the Special 301 Report Priority Watch List. If Linden Lab was right to keep Gala's assets blocked due to ongoing court action in Canada, wouldn't this mean that the DMCA can be abused as a back door to enforce, on US soil, court verdicts from countries whose intellectual property laws the US consider inadequate?

Can this really be the intention of §512(g)(2)(C)?

In other words: Wouldn't it be smarter to sue Linden Lab for misapplication of the DMCA and leave Canada to the Canadians?

stunned by this

@Masami
Successful skin brands like Curio have to file a good 2 to 4 DMCAs a month. Ripped Curio skins are in every noob-welcome pack (as Mother Goose, Body Co, Redgrave, LAQ etc etc are). Curio up to now probably had to file a good 200 DMCAs.
90% of the people back off then but there are always some with an attorney-daddy in RL who counter-file. Then you have to let it slide, because its impossible to go after everyone RL with the relatively little money one earns from SL (and your assumption that it costs zero cent to do so is bogus).
What we learn so far from this episode is: If someone counter-files you HAVE to go to court else you are in high danger to lose your whole business. This changes the SL 'game' fundamentally and its not a nice outlook to the future of SL.

foneco zuzu

It's a future we allowed to be and i just hope, now, more are conscious of the damage Dmca made, as Acta will do and so on!

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