Canary Beck queries the Second Life user community on a variety of topics
Earlier this month, I conducted a survey of Second Life users, asking them what they knew about intellectual property rights in Second Life, especially as related to the DMCA. Based on the findings of over 250 respondents*, it’s clear that there is some confusion about that law, which this post might help clarify. This post is an abridged version of my summary of results. The full version will appear on my blog a week from now.
First things first: I am not a lawyer. Second, nothing in this post is a substitute for, nor does it constitute, legal advice. This second qualification also applies to Ms Vaki Zenovka, a Second Life user and RL lawyer who speaks regularly on topics related to the law and Second Life, who I’m citing to explain what the DMCA really involves. Finally, the information I share here applies to people living in the US.
Surprisingly, 8.7% of respondents reported filing a Digital Millennium Copyright Act (DMCA) notice relating to Second Life content. Even more surprisingly, 2.8% reported they didn’t know if they had filed one. Only 2.4% of respondents indicated they had received a DMCA notice relating to Second Life content.
55.6% were correct in reporting that a DMCA notice costs nothing to file. This lack of up front cost is one reason critics cite for some of the unintended consequences arising from its use. Claimants must fulfill several requirements when filing. According to the Electronic Frontier Foundation (EFF), the copyright owner (or his or her agent - like a user that hires an attorney to file DMCA notices to avoid revealing name and contact details) must supply the service provider (e.g. Linden Lab, WordPress, Flickr, etc) with their name and contact details (yes, their real life details - unless you use a lawyer to do this for you), the location of the infringing materials, sufficient information to identify the copyrighted works, a statement of good faith, and a statement of the accuracy of the notice under penalty of perjury, that the complaining party is authorized to act on the behalf of the copyright holder.
Next: DMCA and Counter-Notices
Importantly, filing a DMCA notice opens you up to statutory damages (including costs and attorney’s fees) if you misrepresent that the material or activity is infringing -- 52.8% report being aware of this.
Only 41.7% knew that A DMCA notice does not require that you prove ownership of the Intellectual Property. Ms Vaki Zenovka, a Second Life resident and lawyer that speaks regularly on topics related to the law and Second Life, said on my blog: “A DMCA application requires that you give a statement, under penalty of perjury, that you are the owner of the of the content or are authorized to act on the owner’s behalf. There is no proof required. A DMCA takedown notice goes to an online service provider. An online service provider is not a court of law, and doesn’t care about proof.”
Only 40.9% of respondents knew that when filing a DMCA counter-notice, you do not have to prove that the content is not the claimant's own creation and that the original claim is false and invalid. On this, Ms Zenovka said: “Again, a DMCA counter-notice goes to an online service provider, not to a court of law. There is no proof required. A DMCA counter-notice simply requires that the person filing the counter-notice give a statement, under penalty of perjury, that he or she has a good faith belief that the material was wrongly taken down.”
DMCAs and Trademark Infringement
22.6% were incorrect in saying that a DMCA notice should be used to counter trademark infringement. On this matter, Ms Zenovka said: “DMCA is exclusively a copyright remedy. It has absolutely no relevance to trademark infringement. A brand owner who is unhappy with the display of his or her brand or concerned about the potential for consumer confusion /cannot/ use a copyright claim to take down an image in which the brand owner has absolutely no copyright interest (side note: a trademark owner does not have a copyright interest in his or her brand name).”
DMCAs and Copyright Infringement
60.2% were correct in saying that a DMCA notice should be used to counter copyright infringement. This is not to suggest one should immediately reach for a DMCA notice when addressing a copyright infringement issue (which maybe be why some of the 31.8% indicated they didn’t know). The first resort should be to ask the other party to stop using the material in question. If this doesn’t work, the claimant can use a DMCA notice to require the ISP get involved.
Despite the DMCA’s drawbacks, Ms Zenovka says:
“The DMCA gives individual users a clear, simple process and a remedy that isn't spending $100,000 on a copyright infringement lawsuit every time a work is potentially infringed. It allows individual creators to file a simple notice and request that service providers intercede and remove potentially infringing works, and if a work is removed that isn't infringing, it allows the work to be restored with relatively little delay (14 days as compared to months or years). In addition, it allows service providers to exist without constantly defending copyright infringement lawsuits — and believe me, without the safe harbor provision of the DMCA, every online provider that offers user generated content would be enmeshed in crushing vicarious and contributory infringement lawsuits, because it's much more profitable to sue Wordpress than it is to sue Random Blogger #12.”
In closing, it is clear that there is some confusion regarding the DMCA among this sample of Second Life residents, which may be generalizable to the broader population it represents. As I said, I’ll be sharing the full results of this survey in a post on my blog on Thursday, July 2nd.
Canary Beck is an active member of Second Life arts and letters community, and is the founder of the Basilique Performing Arts Company which produces ground-breaking, large-scale, theatrical productions in Second Life. In real life, Becky has a background in behavioral and social psychology, and is the owner and operator of a London-based Internet marketing consultancy.
*About the Survey Sample
252 respondents (96%) completed the online survey of which 99% reported being Second Life users. 4% did not complete the survey. 53% of respondents resided in the United States, 12% were in the UK, 5% were from Canada, and 5% were from The Netherlands. In total, survey respondents completed the survey while in 25 countries.
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