Virtually Blind Commentary
Most readers will be familiar with the story of ‘Anshe Chung,’ the avatar of Second Life real-dollars millionaire Ailin Graef who, CNET reported, was subjected to “a 15-minute digital barrage of flying penises and doctored pornographic images” during an in-world interview with CNET in December.
A video of the “griefing” attack has been circulating, and will likely remain widely available via a simple search for, well, pretty much forever… or at least until 14 year olds get bored with giant flying genitalia.
Notwithstanding the fact that trying to get something like this to disappear from the internet is, as Joe on Newsradio said, “like trying to get pee out of a swimming pool,” Ailin’s husband Guntram Graef filed a complaint with YouTube under the Digital Millennium Copyright Act (DMCA). YouTube, of course, immediately pulled the video. The problem is, posting the video wasn’t a DMCA violation in the first place.
Although Ms. Graef at least arguably owns the appearance of her avatar for copyright purposes, the interview was a public, in-world event. Distributing a video of a public event that contains otherwise protected intellectual property is generally considered “fair use” of that property. The only question here is whether a video of a public event in a virtual world should be afforded the same protection as a public event in the real world–and there’s no inherent reason it should not be.
YouTube’s rapid response, however, is not surprising. The DMCA gives copyright holders a lot of power because service providers are required to take an “act first and ask questions latter” approach when a complaint is filed in order to invoke the Act’s “safe harbor” provisions and avoid liability for infringement themselves. Companies and individuals have been accused of taking advantage of that by filing meritless complaints in order to generate quick action.
What is surprising is that the Graefs have actually acknowledged the inapplicability of the DMCA, and Mr. Graef has withdrawn his complaint. CNET reports:
In an interview with ZDNet UK sister site CNET News.com, Guntram Graef, the husband of Anshe Chung’s creator, Ailin Graef, explained that he now understands that the video, which he still considers offensive and a sexual attack on his wife, was not copyright infringement and therefore his DMCA complaint was not appropriate.
Adding a layer of complexity, Mr. Graef might be liable himself for falsely reporting the posting as a DMCA violation. As YouTube’s DMCA copyright policy accurately states, “under Section 512(f) any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.”
So why publicly acknowledge the fact that the DMCA doesn’t really apply here? Consider this: the Graefs have more economic reason than anyone to want to see real-world laws applied to virtual activity just as if the activity took place in the real world. After all, Ms. Graef is Second Life’s biggest land baron. Applying the doctrine of fair-use to a virtual event just as if the event happened in the real world is not only reasonable, it supports the Graefs’ position in their inevitable battle over the status of their “virtual” property.
Related Posts on Virtually Blind
- Boot Design Copyright Accusation in Second Life Highlights Linden Lab DMCA Policy: "Copyright accusations between Second Life designers occur on what..." (12 comments)
- Virtual Worlds Fall 2007 Conference and Expo (San Jose, Oct. 10-11) to Feature Issues in Virtual Law: "I'm excited to announce that I'll be attending the Virtual Worlds..." (1 comments)
- Second Life Intellectual Property Discussion Friday February 15 at 3:00 PM SLT (Pacific Time): "Today (Friday, February 15) at 3:00 PM SLT (Pacific) attorney Frank..." (0 comments)
Leave a Reply
Notes on Comments: Your first comment must be manually approved, but after it is you'll be able to post freely with the same name and email. You can use some HTML (<a> <b> <i> <blockquote> etc.) but know that VB's spam blocker holds posts with five or more <a> links. VB supports gravatars. Got a gravatar? Use the associated email and it'll show with your comment. Need one? Set it up for free here.