October 27th, 2007 by Benjamin Duranske
Six major Second Life content creators have filed a lawsuit (.pdf) in the Eastern District of New York claiming copyright and trademark infringement against Second Life user Thomas Simon of New York, who allegedly exploited a flaw in the Second Life software to duplicate thousands of copies of the creators’ products.
Simon allegedly sold copies of the creators products to other Second Life users as Second Life avatar ‘Rase Kenzo.’
The allegedly infringing items represent nearly every type of product for sale in Second Life including avatar clothing, skins and shapes, scripted objects, furniture, and more. All of the products allegedly duplicated appear to be covered by plaintiffs’ copyrights and trademarks.
Plaintiffs claim that Thomas Simon, a Flushing, NY resident, used and continues to use the ‘Rase Kenzo’ avatar to duplicate and sell unauthorized copies of the plaintiffs’ products, mainly through scripted in-world JEVN vendors, avatar-to-avatar transactions, and virtual “yard sales.”
This guy cherry-picked from every major designer in Second Life, and then duplicated all of it over and over and over.
One of the six plaintiffs is Eros, LLC. Eros’ CEO is ‘Stroker Serpentine’ (Kevin Alderman in real life). Eros brought a similar suit against a John Doe defendant earlier this year. The other five plaintiffs are also well known Second Life content creators. They are DE Designs, Inc. (‘DoC Eldritch’ in Second Life), RH Designs (‘Rebel Hope’ in-world), Le Cadre (‘Asri Falcone’), Nomine (‘Munchflower Zaius’), and Pixel Dolls (‘Nephilaine Protagonist’).
Over 150 screenshots showing alleged copies of the creators’ products placed in activated vendors (allegedly for sale) and boxes (allegedly for duplication) owned by ‘Kenzo’ are available via an anonymous Flickr album. The album has been the subject of intense speculation in the Second Life blogosphere since it appeared three weeks ago. It is directly referenced in the complaint, and appears to have been created for this litigation.
“If you look at the pictures [on Flickr] you can see boxes and boxes of this stuff,” Alderman said. “This guy cherry-picked from every major designer in Second Life, and then duplicated all of it over and over and over the same way. He has thousands of these items.”
According to Alderman, many of the allegedly infringing products were originally marked “no copy” and “no transfer,” meaning that it is theoretically impossible to replicate or sell them in Second Life.
Alderman said that he believes Simon took advantage of a fairly well known Second Life security flaw that allows user to make unauthorized duplicates of items by moving the objects from their inventory to the world (causing them to be registered on the server) during times of heavy lag or, in a related exploit, immediately before a server crashes or is rolled back. When the server catches up to the requests, duplicate items are created.
We sent a cease and desist letter and a settlement proposal, and the nature of the response established that this guy controls the ‘Rase Kenzo’ avatar.
Each of the creators is identified in the complaint with a real name. Though all except ‘Hope’ have previously made their identities known, the creators are aware that this suit will invite greater scrutiny into their real lives. “Unfortunately, that’s part of this,” said Alderman, “because legal action is our only real choice, we end up having to give up some of our own privacy.”
The alleged association between defendant Thomas Simon and the ‘Kenzo’ avatar (left, skysurfing in his Second Life profile picture) appears conclusive. Frank Taney, a partner with Buchanan Ingersoll & Rooney who represents the plaintiffs in this case, said that it was not necessary to bring a complaint against a fictitious defendant in this case because a combination of real world and in-world communication with Thomas Simon pre-filing established that Simon controlled the ‘Rase Kenzo’ Second Life account.
“We sent [Simon] a cease and desist letter and a settlement proposal,” Taney said, “and the nature of the response established that this guy controls the ‘Rase Kenzo’ avatar.” Besides Simon, ten fictitious defendants are also named as part of a civil conspiracy. This makes it easier for the plaintiffs to add additional named defendants if discovery reveals potential co-conspirators.
We originally tried to go through Linden Lab. Everybody filed DMCA notices. We filed support tickets and abuse reports. We even sent a letter to Robin and copied Philip. We got nothing.
Alderman said the lawsuit follows over six weeks of fruitless negotiation. “We had hoped to resolve this without filing a suit, but that hasn’t happened.”
Plaintiffs, who have managed to keep the potential lawsuit extraordinarily quiet given the scrutiny of the Second Life blogosphere, were apparently hoping that Simon would want to preserve the reputation of his avatar. “The guy has been on the grid for two years, and he ran a DJ business,” said Alderman. “He’s pretty well known.” Alderman said that the Plaintiffs recently offered that if Simon would cease his allegedly infringing activity, surrender his inventory of allegedly duplicated goods, and covers the plaintiffs’ expenses, plaintiffs would not file the suit, “and he basically told us to take a flying leap.”
The creators say that they did not seek a lawsuit as a first option. “We originally tried to go through [Second Life Provider] Linden Lab,” said Alderman. “Everybody filed DMCA [takedown] notices. We filed support tickets and abuse reports. We even sent a letter to Robin [Harper, Linden Lab's Vice President of Marketing & Community Development] and copied Philip [Rosedale, Linden Lab's CEO]. We got nothing.” Robin Harper was offline when this story developed, and did not respond to an after-hours request for an interview.
We got up to his skybox and he’s got these vendors all laid out. Sex toys in one. Shoes in one. Furniture in one. It goes on and on.
Alderman said that he did not initially want to lead this battle, but that the sheer volume of the alleged infringement he and the other designers found led them to collectively conclude that something had to be done. “I did not want to be the front guy here. I am trying to run a business, and I am tired of this. I am tired of lawsuits. But we got up to his skybox and he’s got these vendors all laid out. Sex toys in one. Shoes in one. Furniture in one. It goes on and on.”
Alderman said that Simon insists he has only made $524 on sales of copied items, but that he has been unwilling to produce transaction logs to substantiate that claim. Alderman said, “since the beginning, he’s lied to us and he threatened us, and all we asked for was his transaction history. If he really only made $524 on sales, he should be able to prove that.”
According to an extensive inventory provided to VB by Alderman, the screenshots on Flickr (which, Alderman says, almost certainly do not represent the totality of the alleged infringer’s inventory) depict over 4500 individual items owned by the ‘Race Kenzo’ avatar that are allegedly covered by copyrights and trademarks held by the plaintiffs and other designers.
In addition to the plaintiffs, designers and creators whose products are represented in the photo set includes: T&S Designs, ‘Riann Maltese’ (devPose), ‘Storma Amarula’ (X2 Exotica), DAIZI, ‘Santana Lumiere’ (Nevermore), Vindi Vindaloo (Vindi), ‘Ashley Neva’ (Neva Naughty), ‘Smerk Gorilla,’ ‘Wiccan Sojurner’ (Bewitched), ‘Paeoti Pomeray’ (Nymphetamine), October Brotherhood, ‘Devyn Grimm’ (Chaospire), ‘Solange Cerveau’ (TSR), ‘Janie Marlow’ (Mischief), ‘Nonna Hedges,’ ‘Tori Heart’ (Bare Rose), KD Designs, ‘Simone Stern,’ ‘Amethyst Rosencrans,’ ‘Sky Everett’ (Sky Designs), ‘Zalandria Zaius’ (Zaius Creations), and ‘Ginny Talamasca’ (DAZZLE).
Plaintiffs’ attorney Taney said, “when I see the number of copies that this person allegedly had in the [Flickr] screenshots, if my livelihood was in selling these virtual goods, I would fear for the demise of my business.”
Alderman said that he gets angry when he thinks about the alleged theft of his and the other plaintiffs’ creations, but it isn’t about the money. “This how a lot of us make a living,” Alderman said, “but really, we want a public apology and a promise to stop infringing more than anything else.”
Language in the complaint suggests that Plaintiffs may seek a preliminary injunction prohibiting Simon from selling items held in the ‘Rase Kenzo’ account.
‘Kenzo’ did not respond to an in-world message from VB seeking an interview.
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