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Tuesday, June 24, 2014


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I had a long conversation with someone about this issue this morning. Note: I don't represent any of the parties, I don't know anything about this issue other than what's been posted publicly, I don't have any insider information. But I do know DMCA stuff (and boy howdy do I know DMCA abuse).

The WowMeh creator offered two reasons why she did not respond to the DMCA take-down notice with a counter-notice. First, she was unwilling to expose her RL contact information to an unknown party for privacy reasons; and second, she was uncertain as to what the allegedly infringing content was, so she wanted to revise her body.

Let's look at the first issue. I certainly understand the privacy concerns, especially if she's already been harassed. I've heard several people say that this concern is invalid, because it's very easy to protect your identity and still respond to DMCA notices. I disagree. I know people like to do the thing where you register a DBA alias and a P.O. Box, thus masking your name and address, and whether or not that's a legitimate approach, it isn't necessarily an option for everyone. It may be an easy thing to do for people in a U.S. city. people in rural areas, or people in other countries (as the WowMeh creator implies that she is), may not have that option.

Additionally, the entire point of this part of the DMCA's requirements are to /enable/ contact between copyright owners and downstream users...whether that's for negotiation or for a lawsuit. You don't want to encourage anyone to put fraudulent names on a DMCA notice or counter-notice. Bad idea.

My point here: I think it's reasonable that she's decided her privacy is worth some lost sales.

Now, let's look at the second issue. She explains that she did not receive a copy of the take-down notice, and did not know what the complaint was about. Therefore, she could not, in good faith, assert that her work was not infringing. Since her work was a derivative work of the SL avatar, she decided to revise the work and remove any content that was not her own. To an extent, this is the correct thing to do: she /could not/ submit a counter-notice, which requires her to assert (under penalty of perjury) that the work in question has been wrongly removed. If she doesn't know why it was removed, she can't make that assertion. It stuns me that LL wouldn't send her a copy of the complaint — that's the oddest part in all this, to me.

As for the DMCA abuse part...that's pernicious as hell, and not just in SL.

Offhand, I'm a little dubious that any of the mesh bodies are really copyrightable at all to begin with...but that's not really what this article's about.

Pussycat Catnap

If you sit down in a 3D app and make a new mesh human body from scratch - vertex by vertex all you... that would be copyrightable.

But with a derivative work, as Vaki notes it gets murky figuring out where the line goes.

I'd heard this was removed - some SL forum posts were accusing "people" with a competing product of filing the DMCA. There is/was only 1 single competing product... so I pondered at them... are you specifically calling out so-and-so? And folks didn't like being called on their accusation and tried to flip that on me...

There's probably a lot of similar drama going on over this thing.

The entire DMCA process is a bit chilling if one is considering getting into the business of selling original content in SL. The very thing there to protect you, is also a threat...


Unfortunately, I see this being a problem in the Metaverse from this point going forward, it could (in the near future) compared to a form of corporate espionage with all of the legal ramifications there in, especially given the specialized nature of digital content as a whole, I just hate to feel that a creative individual coming from a pure place has to worry about this kinda crap, but unfortunately just like RL, the Metaverse will have to have a robust legal/copyright system in place if it hopes to survive.


Pussycat Catnap made the point, "If you sit down in a 3D app and make a new mesh human body from scratch - vertex by vertex all you... that would be copyrightable."

That's the point on which I disagree. I went into a lot of detail on that here -- http://lawforhumans.com/copyright-and-mesh-wireframes-in-virtual-worlds/ (sorry for the plug to my own blog, but believe me, you don't want me rewriting it here). Short version: the one good case we have on copyright in wireframes found that the specific ones in question weren't copyrightable, because all they did was reproduce, in wireframe, something that already existed.

Mesh bodies are reproducing something that already exists: the SL avatar mesh. Even if they aren't actually using the avatar mesh itself as a guideline, or looking at the actual SL avatar mesh, they're derivatives of the avatar mesh. With a derivative work, a creator can only have a copyright in his or her own independent creation, so — assuming LL is permitting all uses of its avatar mesh — a body creator could not get a copyright in the entire body, but only in the things that are different from the avatar mesh.

To clarify: let's say I go to the museum with my sketchpad and colored pencils, and I sit down and sketch The Birth of Venus. I do a beautiful job, I get it exactly right, and it's a glorious picture. That sketch is entirely my work. I did it myself. But I can't get a copyright on it, because it's a derivative of another work. If I've added something to it — maybe I've made Venus look like a Swimsuit Illustrated model — I could claim the things I've changed. But I can't claim the things that are derivative.

(Of course, this is just under US law. Other countries have different legal analyses).

This question — what is and isn't derivative — is an awfully difficult one to settle out, and would only really be sorted out in court. So right now it's all hypothetical, and just sort of entertaining to toss around. But it does have implications for those creators who are investing significant time and money into making mesh body parts, and hoping to be able to protect them.

Arcadia Codesmith

The DMCA needs an overhaul, for multiple reasons. It wouldn't be overboard to subject it to annual review, to adjust for things like developments in case law and new technology.

sinead mcmillan

well, all that mesh big-boobs, big asses etc. business is really BIG business, especially in money terms.

but: in opposite to the former existing products all over the grid, baby ghosn's and bit mcmillan's output is elaborated/pretty good/working, indeed.

i can see a "rationale" of "the jealous" in filing dmca's against people like baby and associates. her/their gorgeous fitted-mesh body successfully implemented all over very quick, leaving the competitors behind in a relatively suboptimal position.

"they" simply just f****** can't stand it.

and the given structure makes it ultra-easy to file any bogus dmca-rubbish on anybody.

Darien Caldwell

@Vaki, I think your example of why a mesh body can't be copyrighted is flawed.

You're hinging it on the point of 'copying' an existing work. But if you are actually making your own mesh, you're copying nothing. It's fully unique and copyrightable.

To put it in the frame you did, of drawing, it's like going to the museum and seeing the statue of Venus. Then deciding you want to go make your own statue. You go home, get a block of marble and chisel out a statue of a female. And that's where the similarities end, at gender. The face isn't the same, the body shape isn't the same, the proportions aren't the same. Even the marble is different. Nobody can claim that is a a derivative work.

It's the same with your own hand-created mesh. It shares no structure or features with any existing mesh, it's 100% original, and therefore copyrightable.


@Darien... I totally get your point, and see that interpretation, and believe me, I'm a big believer in copyright minimalism, so I'd love for people to be able to create more derivative works far more easily. Unfortunately, that's not how the case law on derivative works goes.

For instance, you know the George Harrison song "My Sweet Lord"? Famously, he was sued for that, because the chorus sounds like "He's So Fine." He said he didn't intend for it to sound like "He's So Fine," and wasn't even thinking of "He's So Fine" at the time that he wrote "My Sweet Lord," but the songs were similar enough that the court found Harrison had indeed infringed.

More on point, there's a case where an artist, Jeff Koons, found a postcard he liked of a couple holding some puppies. The postcard was in black and white, and it was just kind of kitschy. Koons created a sculpture of a couple holding some puppies. Obviously, it didn't look exactly the same — it was three dimensional, it was in color, and everyone's features were altered and exaggerated. But it was also obvious, to the average (non-expert) person, that the sculpture was inspired by the postcard. Koons was found to have infringed the photo.

And here's your problem: we're not talking about looking at a statue of Venus and going and making a completely different statue, in a completely different pose, one that an average viewer would not be able to relate to the first statue. We're talking about looking at an avatar mesh which must, by design, conform to the exact same shape and sizes and general overall appearance as the default SL avatar. It's prettier, it's better shaped, it looks nicer, its features are altered (as the Koons sculpture was), but the average person could still look at it and say, oh, that's a Second Life avatar. That's not a World of Warcraft avatar, that's not a Guild Wars 2 avatar, that's not an Elder Scrolls avatar, that's Second Life. Because it's structurally based on the Linden Lab avatar frame.

...And that (most likely) makes it a fundamentally derivative work.

But copyright's complex, weird, and /never/ a bright line situation. Only a court is going to be able to say one way or another. The problem is, that means going to court.


Popping back in to clarify something that was bothering me at lunch today.

When I posted yesterday, I referred a couple of times to cases that discussed derivative works in the context of infringement. In doing so, I might've made things a little more confusing. I don't mean to imply that WowMeh or /any/ of the mesh body creators are somehow infringing Linden Lab. I don't think they are: Linden Lab has clearly provided the tools for designers to create content based on its avatar, and the ToS grants the right to make derivative works of LL's content (with limitations). No problem.

All I'm saying is that when one person creates their version of a new mesh body part for the SL avatar, and they've made a few tweaks and changes, the only part we consider as /a new creation/ in terms of copyright are the tweaks and changes — not the whole body part itself. Just what's different from the thing that was there first. If those are too minor, they're not protectable. The law /wants/ to allow another person to come along and make other small tweaks and changes. We don't want to let one person make an adaptation and stop everyone else from doing it.

There's actually a very famous test for this, and pardon the mild legalese. When it comes to comparing derivative works to one another, "originality is not to guide aesthetic judgments but to assure a sufficiently gross difference between the underlying and the derivative work to avoid entangling subsequent artists depicting the underlying work in copyright problems.” Gracen v. Bradford Exchange, 698 F.2d 300, 305 (7th Cir. 1983). In other words, when we're trying to figure out if a derivative work is original enough for its own copyright, we say that it has to be /so/ original, so different from the underlying work, that there's still room for other artists to come in and make their own derivative works.


What I heard was the takedown was against the included skins. These were based on "free" skins that happened to include some Redgrave rips. Has anyone else heard more? Has Redgrave spoken up?

Dean Ashby

Hi, its Dean from REDGRAVE. Before any rumors appear here: We did not wrote any DMCA against WOWMEH. The creator from WOWMEH wrote us to clear if the skins are ripped or not. But that cannot be the reason for the takedown. Regards Dean

Kaliope Karas

I do have a question, and maybe I don't understand this well enough to have an opinion. But I wonder why aren't both parties required to "take down" until further investigation? And is the burden of proof still on the moving party? Why should someone have to counter claim to get information? Shouldn't it be "so and so claims that you blah blah, how do you respond?". I don't think it fair that Baby and Bit, according to their blog, did not receive information as to who is placing a claim against them and exactly why.

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