WordPress' DMCA Takedown of Second Life Images Exposes Thorny, Ambiguous Issues Around Virtual IP

Since blogging about WordPress removing a Second Life screenshot due to a DMCA claim yesterday, the original story as reported by Canary Beck has been deluged with dozens of comments, many by the person who filed the DMCA. A lot of them are fairly angry and uncivil, and illustrate a point which made me hesitate to even mention Canary's post in the first place: There's a tremendous amount of confusion and ambiguity around virtual IP rights, and just as much anger.

For instance, while Caitlin Tobias writes:

In this case, despite all the things that could have done better by the blogger and the creator, DMCA is abused to get pictures offline for the wrong reason. DMCA is to protect content creators, to protect intellectual property. It is not meant to be used to get pictures/images offline just because: you do not like them. No stealing happened in this case, no copyright infringement happened either.

... I'm not even sure this is actually the case, legally speaking. Since the Second Life content (in this case, a robot arm) is actually a 3D model, I believe it can be copyrighted. At the same time, that runs counter to how we deal with the real world analog. If I take a real photo of a real robot arm made by Toyota, I don't have to ask Toyota's permission. Then again, like most everyone on the Internet: IANAL. Then yet again, even the EFF's actual lawyer says Second Life copyright issues are "In some ways worse" than real life, and full of "gray interesting mysteries".

And as it turns out, the SL creator who filed the DMCA claim against the blogger claims that she has received them herself, from major companies:

I have had DMCA notices from Valve in the past about specific products, I sat down and discussed with their paralegals and reached some common grounds. Can you also wonder about certain creators in this story claiming stolen work and are riding on the Tron, Audi and Nike brands for their whole product lines?

Which brings up another thorny point: A lot of Second Life content infringes on real life copyrights and trademarks, and is already a target of DMCA notices. And now with the world's largest blogging platform responding to SL-based DMCAs... A box. By Pandora. About to burst wide open.

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Comments

[Cube Republic]

Someday I'll get sued by a rock or a flower, I can see it coming.

[Ciaran Laval]

Wordpress actually have a hall of shame regarding frivolous DMCA takedown notices :

http://transparency.automattic.com/tag/hall-of-shame/

[Arcadia Codesmith]

The filer would be laughed out of court against a fair use defense, but who needs the hassle? We have real IP issues in the virtual world. Taking pictures of stuff isn't one of them. This is just drama fabrication by somebody in need of a stickectomy.

[zz bottom]

Or free publicity, speak bad but speak:)

[A.J.]

Arcadia, this isn't exactly just taking pictures of stuff.

Say, you have a friend that designs evening gowns and she pays you to promote her work. So you model one of her pretty dresses and neatly position yourself among three mannequins wearing Chanel gowns. Then you meticulously snap a picture. Then you product place her logo in the background and then slap her logo predominately on the finished photo and then never utter the word "Chanel " again.

Oh, then you post your proud "picture of stuff" publicly on a site where you exchange money for services.

I have no idea what you would hear from a court on that, but I doubt it would be "laughter".

[Arcadia Codesmith]

Doesn't matter. You can be sued in some jurisdictions for using pictures of people without their permission, and you can be thrown into shadow detention and tortured by the secret police for taking pictures of classified stuff, but you do NOT have to have releases for every identifiable object in an image.

You most particularly do NOT need any sort of permission from the maker of an object to photograph it for review, even if your photograph is badly-composed and poorly-considered and the review trashes the product, company, and the mating habits of the executives and their livestock.

Trademark confusion doesn't preclude a fair use defense (543 U.S. 111 (2004) KP PERMANENT MAKE-UP, INC. v. LASTING IMPRESSION I, INC., ET AL.)

Non-technical summation: plaintiff got nothing, get out of the courtroom. And pay the nice lawyers on your way out.

[Vanni]

More than half of DMCA complaints are worthless, done by people who want to get at competitors or just don't like X company. Also, like any other copyright or trademark issue, getting a letter saying "In the name of the DMCA I order thee to remove thy offending content forthwith lest thou hast the wrath of lawyers from hell upon thy head" simply means the party is asking to have the content removed. It has no legal bearing in and of itself, but is a necessary first step in taking a person to court under copyright/trademark law. Wordpress easily could have said "F* you, sue us" and let the hurt party take the next step to a judge. And based on statistics, it most likely would have failed there.

http://www.pcworld.co.nz/article/483729/google_submission_hammers_section_92a/

[A.J.]

I don't know Arcadia. Maybe you are completely right.

Maybe people do have the ability to win by misleading,
confusing, being greedy, and lacking empathy.

It's just difficult to see so many people defend this as being "right".

[zz bottom]

We just need to have faith.
http://en.wikipedia.org/wiki/Missionary_Church_of_Kopimism

All knowledge to all;
The pursuit of knowledge is sacred;
The circulation of knowledge is sacred;
The act of copying is sacred.

[Ctrl-V]

amen

[Ajax Manatiso]

The world of trademarks and copyright is craziness now. Walmart failed to trademark the smiley face but the NFL successfully trademarked "The Super Bowl" so now people on tv talk about "the big game" instead. There have been numerous attempts to trademark the word "and" and the punctuation mark "." Copyrights are even more mysterious because you down have to file, just have your work appear with the (c) on it somewhere. With individuals making their own determinations, you of course, have chaos, stupidity, and insanity.

[Amanda Dallin]

"Wordpress easily could have said "F* you, sue us" and let the hurt party take the next step to a judge."

There is no benefit to Wordpress to do this. It's not their content so why should they care? They could lose their "safe harbor" status under DMCA by fighting so why would they fight?

[irihapeti]

@Vanni

I read that story. Paraphrase Google:

"In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business in response to competitors questionable actions."

"In its submission, Google notes that approximately two thirds (63%) of notices were valid copyright claims"

[irihapeti]

if wanted to be mean to Google can surmise from this that they have enabled on their services a whole lot of questionable practices against other businesses

63% / 57% = 36%

36% of all other businesses products are violated on Google services