Does The DMCA Do More Harm Than Good in Second Life? Here's What A Group of SL Designers Told Me...

Janine "Iris Ophelia" Hawkins' ongoing review of gaming and virtual world style

In the wake of the DMCA drama that's been stirring up the Second Life fashion world, I recently surveyed a group of SL content creators about their thoughts on and experiences with the DMCA process. I wanted to know how often their businesses and hobbies are affected by DMCA claims, and whther or not they think it's a good fit in Second Life.

Some of the results were surprising, while some of them weren't at all. Take a look for yourself:

How Many DMCA Claims Have You Filed in the Past Year?

The first question is pretty straightforward, these results feel fairly representative. For the vast majority of SL content creators DMCAs come up every now and then, while the larger and rarer brands deal with a much higher volume. The more visible and popular the brand, the more claims they typically need to file.

So far, no surprises.

How Many DMCA Claims Have You Received in the Past Year?

For most experienced and established SL content creators, receiving a DMCA claim is often a mistake or a griefing tactic. Thankfully, it also appears to be fairly rare. While the DMCA system in its current state is frustratingly easy to abuse, cases of alleged abuse or mistaken claims aren't exactly at epidemic levels. Cases of alleged abuse (Wowmeh, Curio, Violent Seduction) are notable and widely publicized because they really aren't the norm.

The problem is that the option is there, and it's just so easy. At the end of the survey I left a box open for more free-form commentary, and one anonymous respondent had this to say:

It's ultimately such a pointless process. I could file a DMCA on your face and you'd have to change it, YOU'D HAVE TO, or send me all your details. I don't have to prove that I own your face in order to file, and it's not until the eventual trial that will realistically never happen that anyone will decide who did create your face. I am incredibly bitter about the Curio case in particular - THOUSANDS of dollars were raised, and then the case went away. As far as I'm concerned, malicious DMCAs are an occupational hazard, like if you work in IT and your servers go down you can't work. So where is the $20,000+ that was raised in good faith? Vaki would undoubtedly not have done it pro bono but even she couldn't inflate her bill that much. Hope Curio enjoyed her holiday![Ed. note: The resolution of the Curio case was shared in a joint statement here. It's very unlikely Gala Phoenix went on "holiday" with the money raised as her store was down for months, preventing her from earning her income while she simultaneously accumulated legal fees associated with the dispute, even if she eventually decided to settle.]

For that matter, there may even be more false claims than we hear about because (as the last comment proves) people are more than happy to shift blame onto the victim. As another anonymous participant astutely pointed out:

I think some very public DMCA take downs in recent history have caused designers to fear coming out. Even the SL community can become a mob scene. Look at the poor designer crying copybot, boohoo. Not everyone rallies for you and raises funds for your legal expenses. You have to be someone very special for that to happen.So, ultimately whatever has been stolen from you, financially might not be worth the risks of filing. A shame that the victim of theft has to not report something due to fear of being even more victimized.

Do You Think the DMCA System is Helpful or Harmful in SL?

While it's clear that the majority of respondents think that the DMCA system is helpful in Second Life, it's fairly clear that it's not a perfect fit. As Hamlet has pointed out before, the reliance on real-life names and information is off-putting in a world where so much happens pseudonymously. At the same time, that reliance on real-life info can help identify repeat offenders and, as another respondent who chose to remain anonymous said, "Real Life names helps real life accountability." Beyond that, the use of a system that isn't limited to within Second Life allows for action to be taken against people exporting SL content to other platforms.

A great deal of the frustration with the DMCA system seems to be in just how limited it is in certain areas, how loose it is in others, and how some of the best actions for creators to take may involve working outside of it altogether. Mochi Milena, designer behind one of Second Life's most popular skin brands, shared her own story of endless DMCA drama:

DMCA has generally helped me for having stolen content removed from the marketplace. However, my greatest struggle with the DMCA process is that once the item is taken down, the offender can re-upload the same item once again with virtually no changes. This has happened to me with on particular individual and their numerous alt accounts who sell stolen skin templates. I've filed at most 7 DMCAs against this person only to have the offending content re-uploaded the next day. Then the DMCA process takes 3-4 more days for LL to process, leaving the offending content available for purchase and me unable to do anything. For them, it's quick money and a big headache for me. The best way I've gone about this is to raise awareness about stolen skin templates on the marketplace and to inform potential consumers to do their research before buying them.

Another anonymous designer expressed similar concerns: 

DMCA is currently the only tool available for designers to report and have stolen content removed. Unfortunately, the way that Linden Lab implements the process is imperfect. They often do not remove all the indicated stolen content and they rarely ban repeat offenders. The offender just re-uploads the stolen content from their hard drive, or, transfers it from an alt that was not reported, and then offers it once again. This has happened to me repeatedly over the past 3 years - no matter how carefully I watch for the stolen content and when I see it file DMCA, confirm that it has been taken down, it reappears either on the main offender or an alt at some point in the future. Most honest designers file their DMCAs quietly and do not go to forums or social media to "name and shame". The unbanned offender continues to steal without fear of punishment. Special events in Second Life have multiple designers participating that have histories of content theft. Organizers of the events don't know (or worse, don't care) that one or more of their participants have been content thieves. The system is imperfect at best, but it is the only one we have.

It seems that for all the good that the DMCA can do, there are a lot of things it could still do better, and former SL content creator Winter Seale weighed in on how that could potentially be accomplished within SL:

What I would really like to see, would be two modes of operation: First, a non-DMCA notice and takedown system that follows the same mechanism as the DMCA but uses Second Life (or OpenSim, et al) credentials exclusively. This would be a low bar to initiate, but also a low bar to challenge. This would be displayed more prominently and would be advertised as the primary way to handle issues. The company processing the complaints could monitor both those filing complaints and those receiving them to look for abuse. And second, as required by law, a full DMCA based process. But for this I would set as high a bar as is allowed by law. That is, communication only in writing, with specifics. (There really is no requirement that DMCA complaints be accepted electronically.)

It's a difficult balancing act to make a process like this approachable and effective for valid cases while making it more difficult for false or abusive ones. Most of the designers who participated in the survey seemed to agree that the DMCA is valuable tool by and large, but its implementation in SL is falling short.

What do you think? As always, share your own thoughts on the subject in the comments below.

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Janine Hawkins (@bleatingheart on Twitter, Iris Ophelia in Second Life) has been writing about virtual worlds and video games for nearly a decade, and has had her work featured on Paste, Kotaku, Jezebel and The Mary Sue.

Comments

[A.J.]

DMCA is complicated and I don't have a better solution.

But much of the Marketplace content theft problem is due to the utter trifling laziness of LL to earn their paycheck off of that place. Selling on Marketplace should be a privilege that comes with some responsibility. Nobody should be selling on that place without some solid RL verification.

Then the lab should permanently ban anyone who is caught doing the copy/paste ad trickery that is mucking up Marketplace. Most of this is so blatant that it shouldn't require a DMCA. It just requires someone who halfway cares to manage the place.

There needs to be a way to flag stolen content on Marketplace without having to buy it and review it.

[Vaki]

I have said this many, many times, but I'll say it here again, regarding that first comment: I was not Curio's only lawyer. I'm not a litigator (in other words, I'm not the kind of lawyer that goes to court), and as most people remember, Gala was dealing with an actual lawsuit.

COPYRIGHT LAWSUITS ARE EXPENSIVE. Lawsuits in general are extremely hard on those involved. And settlements are often under mutual gag orders.

Continuing to insinuate that Gala was off sipping mai tais during that time is just willful ignorance.

[Vaki]

I promised Iris I'd comment again on the whole piece after I'd slept.

A lot of the responses seem to be focused on the frustration around the inability to get a malicious copier to take a copied item down and keep it down, and the desire for some sort of "takedown means staydown" process.

Google that phrase: "takedown means staydown." You'll quickly see that it's RIAA and the MPAA's new rallying cry, and is the cornerstone behind the rebranding of SOPA. And that's fair, because let's be honest: content creators, whether they're texture designers working for micropayments in Second Life or Michael Bay working for tens of millions of dollars in Hollywood, get really damn tired of playing whack-a-mole with every yahoo who wants to throw ripped copies up for free, and every time content creators issue a takedown notice, the bad guys just pop back up again somewhere else with the same ripped content, so the whack-a-mole game starts up again.

And the lobbying to Congress gets louder, and the copyright penalties get stricter, and the copyright laws get more draconian (again, SOPA / PIPA was a law aimed at copyright infringers), and the international trade treaties get tighter and tighter copyright restrictions built into them, and it becomes harder and harder for individuals and small businesses to protect themselves in court on copyright matters...

...and the group damaged the most is the public — all of us, everyone — because the more we fight to bend the law to fix one specific problem, the more we unsettle the careful balances the law has built into it.

Here's why.

Let's say, hypothetically, that we were able to build a "takedown means staydown" system into the DMCA. This could mean one of two things. One: it could mean that if a content creator sends a DMCA notice objecting to infringement of a work — let's say it's a texture — all copies of that texture should be removed from the grid and never be re-uploaded. Okay, so that would mean that anyone who bought the item would have it deleted from their inventory...when? At the moment of takedown notice? Do we give the other party time to counter-notice? How great would that be as an anti-competitive, griefing measure, if I could take my biggest competitor out by forcing LL to delete all their content, including content people had already legitimately bought, and never let them re-upload it?

Okay, maybe it wouldn't be that extreme. Maybe it would only mean that it couldn't be re-uploaded by that specific person, but it wouldn't be deleted from anyone's inventory. It'd still be a hell of a griefing tool, and that completely removes one of the DMCA's biggest benefits: the potential for the infringing side to /get permission/ from the rights holder, and then continue to use the work. The reason each side is given contact information for the other is so you have a chance to work out your differences and potentially license the work in question.

Finally, as much as /I/ would really like a system like the one Winter Seale proposes, it would only work as a voluntary, user-supported system. Linden Lab has to use the DMCA process as the law has established it, because that process (among some other stuff) gives Linden Lab immunity from copyright lawsuits. That process is a shield. When the law gives you a shield, you don't go messing with it, even if the shield doesn't work all that well for your business purposes. That's why you'll see the exact same basic process at any other user-generated content publishing site, like YouTube, Wordpress, Tumblr, or wherever.

Sorry. This was long. I did promise I'd comment, though.