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Designer Lawsuit CaptionSix 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’).

'Rase Kenzo' JEVN Vendors on FlickrOver 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.”

'Rase Kenzo' Second Life Profile PictureThe 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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47 Responses to “Six Major Second Life Content Creators Sue Alleged Copyright Infringer in NY Federal District Court”

  1. [...] Six of the content creators whose intellectual property was stolen – heavyweight SL names like Stroker Serpentine,  DoC Eldritch (DE Designs, Inc.), RH Designs (’Rebel Hope’ in-world), Asri Falcone (Le Cadre), Munchflower Zaius (Nomine), and  Nephilaine Protagonist (Pixel Dolls) – have now filed suit in New York Federal District Court. [...]

  2. on 27 Oct 2007 at 9:04 amcsven

    I never did follow whether Linden Lab took actions I recall them saying they’d take in order to assist content creators in verifying content as their original work back when some of the first “they ignored my DMCA request” complaints started to pop up. Anybody?

  3. [...] more info and details visit Virtually Blind, as well as this Google Document that went public this morning outlining the actions over the past [...]

  4. on 27 Oct 2007 at 10:46 pmVryl Valkyrie

    I am glad to hear action is taking place. This guy should not get away with what he did. However, I can explain why he cannot provide a transaction history.. probably because the dates are too old. Unfortunately SecondLife only stores transactions for the past 30 days. Even I recently tried to acquire transactions for the pas 35 days via support and could not.

    Also.. June Dion is owner of BareRose NOT Tori Heart. Neither June nor Tori are even aware of this article nor lawsuit. Tell me, normally if a victim is suing, should they not be aware of it?

    Vryl Valkyrie

  5. on 28 Oct 2007 at 12:26 amBenjamin Duranske

    Hi Vryl – Maybe some of the plaintiffs have answers for those questions re: trans. history, etc. I’m just relaying what they’ve told me on those points. I do know that not everyone who has stuff shown in the Flickr posts is part of the suit, so it’s not too surprising that some of the people in the long list toward the end weren’t aware of it. As for Bare Rose, could it be another business by the same name? Like I said, maybe one of the plaintiffs can provide an answer there. They put together that inventory.

  6. on 28 Oct 2007 at 5:23 amCyn Vandeverre

    Some of the fancier vending systems have better transaction history management. But unless you get one of those, you have to manually go and download your transactions from the LL site, and they evaporate after 30 days.

    That said, responding that one doesn’t *have* the transaction history is of course the equivalent of anyone on the stand saying “I don’t recall at this time.” Maybe they have it, maybe they don’t, but it should be treated with suspicion. Supposing for the moment that they were intentionally abusing the system to make money, it’s only natural to want to track exactly how much money their exploit is raking in.

  7. [...] a case coming right out of the edges of belief, a group of Second Lifers are suing another Second Lifer, Thomas Simon, claiming that he sold copies of the products out of his Second Life sex toy shop. It seems that [...]

  8. on 30 Oct 2007 at 9:19 amDragger Lok

    It’s a sad commentary on how Linden Labs treats their customer base, to allow a serious TOS (terms of service) violation to blatantly go on despite damning evidence. It speaks volumes to the underlying fault many people feel in Second Life- aside from the “we are family” feeling Linden Labs tries to portray, the bottom line for them is “we will give you a barely stable environment and you will put up with it” As more and more people earn a suitable living from selling goods and services in Second Life Linden Lab has a growing obligation to protect them and conduct themselves as a business- that means doing things that are in the long run in their best interests and preventing them from being enjoined in legal proceedings.

  9. on 30 Oct 2007 at 1:29 pmKasie Swamphen (Second Life Name)

    To be Honest i think this is all out of hand. you are taking a guy to court over some pixels on a screen, YOUR CRAZY! i find this all perfectic if it was second life why has it come in to first life! Maybe you need to get a damn life, if you want too put a man into prison/Fine for copying some pixel cartoons then you out of your MIND!
    Can’t you focus on things in this world that actually matter instead of making something like this a BIG DEAL

    Regards, Simons Second Life Daughter

  10. on 30 Oct 2007 at 2:31 pmJerryyyyyyyyy

    If Rase Kenzo infringed copyright, that should be dealt with, of course.

    What I’m having trouble understanding is why content creators believe they should be able be able to contact the CEO and the “VP, Marketing & Community Development” and whoever else directly about issues to have their problems solved. If there is a desperation aspect when nothing else is being done, or if such contact attempts must be done for legal purposes, then I can understand that. But the way these sorts of statements come off is as though people seem genuinely surprised that the CEO and VP/M&CD didn’t attend to their civil legal matters.

    I, for one, would be upset and suspicious toward any company upon learning that certain people are able to contact the heads of said company to intervene personally in the dealings with their businesses where the service/customer relationship is like it is here. I’m not naive enough to believe that it doesn’t happen in business or that it’s not even commonplace especially as related to politics, but to *expect* it here and in this way? On top of this, if company heads did personally involve themselves in such an expected way, I wouldn’t doubt the company puts itself into legal liability questions (similar to some of which Bragg alleged in his prior case, such as unlawful interference with a business).

    The DMCA process exists for a reason. And it is probably Linden Lab’s safest approach which is why I’m not surprised they seem to favor it. I sometimes hear anecdotes about this process not working. I don’t know if that’s the case, but it’s not hard to believe that it often times doesn’t work. However if people with the vested interest believe there is a pattern of ignoring what they consider to be legitimate claims, then perhaps they should consider collecting and gathering the evidence of such and doing what many appear to be afraid to do: take the challenge to Linden Lab. The newer arbitration provision may be even be ripe for the picking for such a case. Who knows.

    There is a lot of truth to what Dragger Lok says, though I couldn’t characterize the “serious TOS violation” because all I see now are allegations and not yet resolved questions of fact. Yet I believe that it is not healthy for businesses operating within this service to think of themselves as part of Family Linden or Tao Linden or call-up-my-buddy-Philip Linden or whatever. Because when it comes down to it, Linden Lab’s success really is the most important thing from the company’s point of view. I believe it has already demonstrated that quite plainly on its own, and who can really blame it, after all. The best I would think of is as a sort of “business partner” with mutually interdependent success and such thinking makes good business sense. It’s just a bit astonishing to me that some continue to see more of a personal relationship than probably actually exists, or even should exist.

  11. on 30 Oct 2007 at 3:24 pmAshli..

    Well, Reading the following info..

    Newspapr says Tom simons is guilty? so does that make him guilty???
    Have you ever thought of the quote ” innocent till proven guilty” I honestly dont believe a man is getting took to court over some pixels. And being sued thousands of Dollars.
    What the hell is happening to this world? There is murderers and rapists out there mr police man.. so why are you dealing with someone who copied some colors of a damn screen??
    your crazy!
    Maybe he should be punished But in Secnd life!
    Maybe get banned for a bit or something.
    There is scams all over..
    In the real world..
    On over internet games such as habbo hotel, bt i dont see anyone getting chucked in a dump of a prison.
    A little note for the prosecuter and for those who are suing..
    Turn ya bloody computer of and get a real life!

    I wish luck to Thomas Simons…
    Making the papers? wow, doesnt the world suprise you!
    Happy Watching who’s copying pixels!

  12. on 30 Oct 2007 at 3:48 pmDave

    Handle these virtual copyright claims in virtual courts. The real-world courts don’t have the jurisdiction to handle virtual lawsuits.

  13. on 30 Oct 2007 at 3:54 pmBenjamin Duranske

    @12, “virtual courts” may be a good idea for other reasons, but real courts definitely do have jurisdiction.

    There are many creative ways to challenge a lawsuit over virtual goods, but claiming that U.S. courts don’t have jurisdiction over allegedly infringing activity by one U.S. citizen against another that occurs on servers located in California is not one that I see working with many judges.

  14. on 30 Oct 2007 at 3:58 pmAshli..

    Do you guys think its right for simon to pay thousands of dollars are go to prison over stealing some cartoon clothes and furniture though, realistically?

  15. on 30 Oct 2007 at 4:15 pmBenjamin Duranske

    Ashli – prison is not on the table here (at least at the moment) as they’ve filed a civil lawsuit seeking monetary damages. In theory, you can be sent to prison for copyright infringement, but as far as I know no criminal charges have been filed.

    Should he pay the plaintiffs something? Based on (a) what I’m seeing in the pictures on Flickr (which, as a caveat, haven’t been authenticated, though they do appear to be authentic) and (b) the fact that Simon has admitted to making at least $500 (real money) selling infringing copies, I do feel he owes the designers something. I have no idea how much, but according to the plaintiffs, he already told them he did make at least something selling their works. If that’s true, then it really doesn’t seem fair that he keep it, and it does seem reasonable for the plaintiffs to want an accounting.

    Are you friends with Simon — and are you the same person as the poster who identified herself as “Simons Second Life Daughter” above? You seem to feel very strongly about this, and you use very similar phrases and style as that poster (e.g. “cartoon,” “pixels,” “jail,” etc.). It’s fine if you are, I don’t prevent people from posting under more than one name, but the posts seem very similar and it seems reasonable for people to know if you have a personal connection to Simon/Kenzo.

  16. on 30 Oct 2007 at 4:20 pmAshli..

    Yes im a friend. and i am kasies friend too.
    And from google searces and such Kenzo is getting sued $78,000 from what i have seen.
    He may owe them something yes but not 78 thousand dollars i bloody no!
    Yes i understand why the owners are pissed of but my goodnight they have this guy on the newspapers already, do they want to make him feel he cant leave his house too? Ive seen some disturbing things of Kenzo through some websites were he’s been branded “nerd” and to be honest, he isnt. IF people are suing someone such a high amount of money then theyre geeks and need to get a real life dont you think..?

  17. on 30 Oct 2007 at 4:46 pmBenjamin Duranske

    Ashli – I’ve filed a number of Federal suits, and I suspect that the $75,000 figure (it’s usually $75,000 in Federal complaints, and I just checked, and this one is too) is there because one way to justify having a suit in Federal court is pleading that its value is greater than $75,000. It’s almost boilerplate language in Federal complaints, and the number doesn’t really have much to do with what they think they can prove, or anything else at this point. They probably do have a good faith basis for it (e.g. that the total value of everything in Simon’s possession that appears to have been copied is greater than $75,000) but it isn’t necessarily what they think he’s really cost them or the amount they are really looking for here. Obviously, I’m an outsider too, so I don’t know the details, but I suspect that number is much higher than what they really think they can or will get here.

    For what it’s worth, and I say this as a lawyer, lawsuits suck. They suck for everybody involved. I hope, for everybody’s sake, that the parties here are able to work something out.

  18. on 31 Oct 2007 at 3:25 amKasie Swamphen

    Look your all PERFECTIC!! He is a good man , he has said he has done wrong he is paying back all the fee’s now just leave this man alone!

  19. on 31 Oct 2007 at 9:08 amCyn Vandeverre

    Being sorry and giving things back isn’t the way the courts work, Kasie. If someone messes up big time, then other people and the law get involved; it’s the way our society has decided to do things. This could be changed, but only with people who think it should be different, like yourself, working for that change.

  20. on 31 Oct 2007 at 3:03 pmJacqueline Trudeau

    @Ashli. Bits on a screen, or bits encoded on a CD or DVD … There is no difference. Theft of intellectual property is theft. Mr. Simons will have his day in court to argue his innocence.

  21. [...] To read more on this case check out this post from [...]

  22. [...] Virtually Blind reports a group of leading content creators on Second Life have filed a lawsuit in the Eastern District of New York against Thomas Simon, aka Rase Kenzo. [...]

  23. on 02 Nov 2007 at 5:45 pmjanneke

    @ kasie & ashli: this is a guy who probably made thousands of dollars selling the stolen items of other people. he stole items on purpose and sells them hes just an ordinary thief. why shouldn’t he be sued for lots of money?

    hes a thief so he probably lies about the amount of money he earned too. and even if he didnt earn that much money chances are big he cost the creators 75000 dollars in lost sales. This isnt just a game, this is about real money here. hes a thief which made honest people lose lots of money.

    people who make others lose lots of real money should pay it back. if you steal and go on selling items knowing your hurting others financially with it you should be punished its his own fault he got sued

  24. on 03 Nov 2007 at 5:37 pmc.

    Kasie – Some of us make our real life living this way, just the same as any game or entertainment company makes money from “pixels”. This guy is not a “good man”as you put it, he is an alleged thief and like any criminal, deserves the full penalty of the law if he’s found guilty.

  25. on 09 Nov 2007 at 1:18 pmArcher Braun

    Deciding to “make a living” in an environment as inherently unstable, and rife with the ability for players to copy material, is perhaps one of the most decidedly unwise and risky things you could do with your life.

    The Linden $, while some may argue has some sort of “fiat” value, is NOT a legitimate form of legal tender. That issue alone will most likely involve some interesting argumentation.

    This lawsuit, in addition to the other filed against Catteneo, will only serve to draw the intense scrutiny of IP attorneys toward virtual worlds – and that is not the good thing most people assume it to be.

    If you play music in a nightclub in SL, have you paid your licensing fees? The ones that cost around $500 USD? That’s what clubs in RL have to do.

    Oh…and you’re a DJ? You do, of course, realize that every time you spin a gig in SL, you’re operating what’s legally defined as a pirate internet radio station? Get ready to pay your own draconian licensing fees.

    Unless you’ve been living under a rock (or in SL 24/7), how can you not have noticed that agencies such as ASCAP/BMI and the RIAA/MPAA have been dropping the hammer down hard on those who violate THEIR copyrights?

    And finally, even if Serpentine and the rest of the gang win this case…it will mean NOTHING for the average participant of SL who considers themselves a “content creator”.

    Except those who make Spiderman, Superman or Wonderwoman costumes – theives – or those who have lovingly crafted entire sims around a work of fiction (Dune, Star Wars, Star Trek) – theives.

    Only those who have a true inkling of the frighteningly chilling impact of IP law have the slightest idea of why these cases should make everyone nervous.

  26. on 10 Nov 2007 at 7:20 amcyn vandeverre

    I don’t think these cases should make everyone nervous. Some of us are *not* pirating ideas or using other people’s work when we make content.

  27. [...] voor een uitgebreid verslag over de zaak tussen Eros LLC en Thomas Simon de website Virtually Blind of in het Nederlands, de website van SOLV advocaten. Filed in Rechtspraak, Virtuele [...]

  28. on 21 Nov 2007 at 1:07 pmTransparent Jewell

    I’d love to hear more responses to Archer Braun’s post. In short, is anarchy preferable to law in a virtual world? We know that there are people who may occasionally suffer from anarchy, but we also know that many people enjoy the unregulated freedoms they possess. What standard should be applied to determine whether there “ought” to be enforcement of all copyright laws in-world? If from a purely pragmatic position of the highest good for the greatest number of users, perhaps we’d say that anarchy is better than rule of law.

    Maybe a better question is, though, are we in a position to make this determination ex nihilo? According to Benjamin’s interpretation (if I get his drift), copyright laws *already* apply in-world, and the courts have the jurisdiction to decide these civil suits. Assuming that DC comics possessed a strong enough interest in eliminating all Batman avatars, under Benjamin’s interpretation, they could. Music companies, too, could lay suit for royalty charges, etc. It all depends on how injured the party feels and how much resources the person is willing to invest to see their wrongs redressed.

  29. on 27 Nov 2007 at 10:41 pmjasmine

    Ben I’m curious as to what is protected by copyright and to what extent copyright ‘looks through’ the TOS of Linden Labs.

    I’m just thinking say I write a small novel and download it into SL, or indeed sit in SL and write the novel. My understanding is my words, not my ideas are protected by Copyright laws in most countries.

    There is a similar protection for computer code in most countries. I thought in some countries ‘designs’ required registration before protection but it is a long time since I looked at any of this.

    I’m not sure where an arrangement of prims with textures, or indeed a texture over clothes objects (which are non-prim) attracts automatic protection under copyright.

    But anyway lets assume they do, I have entered into a contractual agreement with SL (in the case of paid accounts) and have agreed to comply with the ToS (in the case of unpaid accounts).

    Under that contractual agreement I download my literary work into SL and try and sell it for 10,000 lindens a go ‘no copy’ ‘no transfer’.

    I should check the ToS but I’m assuming if the SL engine accidently ignored the ‘no copy’ ‘no transfer’ setting for a week and there were a million copies, and worse a million copiable / transferable copies, I’d have no come back against LL.

    I am not sure whether characterising a functionality (or disfunctionality) of SL as an ‘exploit’ should necessarily color the ‘event’.

    Sorry it is taking so long, but I guess I’m asking has each user that takes my literary work broken copyright during the period the SL engine is malfunctioning? Does each person that transfer it later breach copyright?

    I guess what I’m getting at is the only wrong that seems to have been done in the legal sense is the wrong of LL’s to allow a ‘thing’ I had marked ‘no copy / no transfer’ to be copied and transferred; and I’m assuming under the ToS I have no comeback for this wrong.

    In SL if something is copiable we all copy it.

    Finally if I accidently set something covered by copyright as copiable and leave it out in public for an hour, and then get the list of people who have taken my literary work can I tell them all to return all copies?

  30. on 29 Nov 2007 at 1:14 amBenjamin Duranske

    jasmine – exactly right on all counts, I think. The TOS limits LL’s liability for errors like this, but that doesn’t really change the copyright analysis. All the TOS does with copyright is not take the rights from you. So if you write a novel using Second Life, you own the copyright in it. If somebody reproduces it without your consent and sells it — whether using SL (via a bug or not) or by printing it out and selling photocopies on a street corner, you’ll have the right to sue the guy who copied it. It would be much harder to sue Linden Lab for enabling the copying (the doctrine would be “contributory infringement”) both because of the TOS, and because, for various good reasons, that bar is set pretty high. Think of it this way — you can’t sue the photocopier maker either. I could see somebody trying this kind of claim sometime, but I don’t see it as a very strong suit.

  31. on 29 Nov 2007 at 3:32 amjasmine

    OK sorry for thinking out loud but my thinking is going in two directions, firstly:

    ‘without your consent’ – in cases where there is an existing real world IP right – if it doesn’t already exist the first IP law of jasmine in SL (or indeed any virtual world) is that an IP holder of rights in the real world shall be henceforth taken to consent to the unlimited use (including exploitation) of those rights within the world by anyone within the world, as ‘allowed’ by that world whether or not the use is intentionally allowed.

    ‘Linden Labs’ – SL is a virtual PRIVATE space, not public domain, not a market common, and is entered by individuals through an agreement with Linden Labs. The SL IP law of jasmine is that anything created wholly within the world is subject ONLY to the ToS and not to RL laws.

    I guess my logic for the second one is you are going into your neighbor’s yard. Your neighbor provides all the materials for arts and crafts. You have the neighbors cookies to trade for each others arts and crafts, you may not take your creation out of the garden. You may only take the boxes of cookies you collect out and they may or may not have a value outside the garden.

    To me the concept of giving IP protection to the arts and crafts, arguably all of which at all times remain the property of the neighbor is a bit silly. Having said this Simone may not sell me any more dresses.

    A final law of jas would be exports from the world should be only for personal use or for reimport. SL gives a save snapshot to harddisk. That snapshot leaves world immediately. Arguably I should be able to sell that real world as an artistic work that is protected.

    Obviously here my first and third law would effectively deny textures in world any protection at all. Simone WILL not sell me any more dresses.

  32. on 29 Nov 2007 at 9:43 pmTimothy Zapotocky

    I’m talking off the top of my head here without going back and looking through the fine print… but I believe our SL TOS allows Linden Lab to make copies of our items and/or to create derivative works without taking our copyright away. So the Lindens can take our stuff and reuse it (although it would be bad business to do so except to keep the grid running) but Rase Kenzo can’t.

    It’s analogous to eBay’s TOS: eBay itself can use your text and pix (not just on the website bit even off the site… if they wanted for example to run print ads featuring selected listings) but you still have the copyright (and hence, other sellers can’t legally copy your original content.)

  33. on 02 Dec 2007 at 9:25 pmjasmine

    Interesting Timothy. I guess that is my point, and it comes back to Ben’s photocopier perhaps. I’m not buying the SL as photocopier metaphor.

    Any alleged copyright infringer inside SL is doing more than photocopying. There are a series of interactions with the virtual world, involving virtual goods. None of these interactions is comparable to photocopying, or even if they are, none are problematic because of the photocopying.

    I guess I’m putting a case for LL’s doing all the copying completely unconcerned with whether there is copyright or not because it has the protection of the ToS.

    I think it is silly to apply real world copyright protections inside SL. I consider either than LL has to enforce it (as if it would bother) or ignore it (as it pretty much has with landbots that have hurt a whole lot of significantly less sophisticated players than the hurt suffered by the big quasi-commercial concerns of SL interested in copyright protection).

    Like the landbots, if what Mr Kenzo is alleged to have done is true, he has exploited the SL programme for personal gain. In raw culpability measure if what is alleged is true he seems significantly less culpable than the landbots.

    I guess my question for you would be this. LL’s drops a copy of a valuable copyrighted item (either the script or texture or actual text I am pretty sure we aren’t talking the whole ‘SL object’ – interesting question whether or not the fact the script and texture are relatively worthless without the relevant SL provided containers should have an impact on the calcs of damages) onto a SIM. Lets say I stumble over it, not realising it is copyright and give to all my friends in my friends list. And they give it to all as well.

    In my view I haven’t reproduced a copyrighted work, LL’s has, when I ask LL’s to give me a copy of non-copiable items it says no, when it gives me a copy, I put it to you I’m entitled to assume that LL’s is entitled to (and by the ToS they are) and under the ToS I have with LL’s I’m entitled to play with these things I have. Including to sell / give away. If I can modify it I can sell and then sell and or give away the modified item too.

    LL’s is not like a photocopier in the library, I don’t think that is an appropriate metaphor. And to try and get vaguely legal for a moment my two legal arguments would be that the original creator has consented to the subsequent copying and use via the ToS and their agreement with LL, and secondly even if they haven’t the copyright has no value (because any value that can be demonstrated is entirely dependent on LL’s in every single way) and no harm has been done, and that the law should not bother itself with nothings in a game.

    I know Linden Labs wants to have its cake and eat it too, but I don’t see how that helps the vendors.

  34. on 02 Dec 2007 at 9:32 pmjasmine

    To supplement my no value argument the Casino’s were closed down over night. The value in their businesses unilaterally destroyed by LL’s decision.

    Equally any and all business can be destroyed over-night by a Linden Labs decision. That is why, I put it to you, it is inappropriate to apply public commercial law in what is an entirely private space governed essentially by Linden Labs according to their ToS.

    The content makers don’t have to put their content into SL. But if they do they need to accept their content is in SL. They want to pretend they are in a bricks and mortar world with only an agreement between them and their customers. They are not. They are in a virtual world whereby every transaction, and indeed every object depends on LL’s being involved in the transaction.

  35. on 03 Dec 2007 at 12:00 amTimothy Zapotocky

    A couple of comments… lots of providers up here sell or give stuff away which is full-mod but which they still hold claim to hold copyright to. Even Stroker does that with unscripted body parts, if I recall correctly. In some cases, especially with freebies, there is a disclaimer that you can do anything you want with it BUT sell it. And a copyright holder has the right to do so EVEN IF the item can be easily copied and EVEN IF there is no easy to way to stop such activity.

    As for the gambling… LL has an obligation “to keep the Grid safe and legal” (to quote something a phrase i heard one of the Lindens’ RL selves say at a conference.) Gambling as it was prcaticed on SL was, in the opinion of LL and its legal counsel, illegal. It was also potentially unsafe. The company has the right to ban illegal activity on its network… EVEN IF they tolerated it for a long time…. and especially if (and there were some credible rumors that this was the case) they happened to come under external pressure from law enforcement.

  36. on 03 Dec 2007 at 5:32 pmjasmine

    That is interesting Timothy if the item is being given away it can’t be a contractual term and the ‘disclaimer’ which clearly isn’t a disclaimer it is an attempt to assert / retain rights is clearly based on the assumption that giving away objects with full mod rights is not a full waiver of what if any copyright is sustained in the objects. I’m not saying it is necessary not present nor am I saying that attempt to maintain rights is not successful, I’m just saying it should be.

    And gambling was probably silly to bring up, but it served two purposes. Firstly it was as close as I could get to a real transaction in SL as the event happens lindens flow perhaps real world dollars flow.

    My point wasn’t whether or not the US has absolutely stupid online gambling laws (it does) nor whether LL’s should have done what it did (in my opinion while the US law is so stupid it should have done it much earlier) my point is SL is their private space which they can and should regulate with private contractual law.

    If they chose to have no law then consumers can chose to use their product or not. If they chose to have really really strict law then consumers can chose to use their product or not.

    What I don’t think they should be allowed to do is try and pretend to be both and leave real world law and courts to clean up issues they have contractually neglected.

    I think we would agree on one thing Stroker should know when he gives away his stuff whether or not he is protected by copyright whether or not his attempt to give things away using SL’s interface, but then assert to retain certain rights, is successful and whether his remedies will work in the US or whether he will be able to succeed all around the world.

    Although the apparent ignorance of US law with respect to jurisdictional boundaries and niceties may well assist US plaintiffs (ok perhaps that is a bit harsh but from the outside looking in it doesn’t seem a good look).

    These questions get much more complex if there is an open source server to server type SL sometime soon where avatars can move freely between providers. I would honestly be a bit surprised if this works commercially.

  37. [...] Duranske writes on the Virtually Blind blog: A judgment by consent (.pdf) was filed today in the copyright and trademark lawsuit six Second Life content creators brought against Thomas Simon (avatar ‘Rase Kenzo’) last month. [...]

  38. on 08 Dec 2007 at 5:01 amshawnwirtz tiki

    Here you go you spend 7 hours making something you thought up spent the whole day making it just right so you can sell if for a dollar a piece you go and put it out for sale on your store you land fees for and two days later you find someone just popped into your store made a copy of it without your permission and is selling it in their store…

    say you spent 7 hours a day for a month creating many things each taking hours of your time to make so its unique and again you put it all out pay fees for a store and two weeks later someone again takes all the things you spent a month making and selling it as if they made it …

    only then can you understand why it might upset you…

    I have several friends who have been copied from like this and others who have copy cats using their store names to try to steal customers

    Everyone who has did the whole dmce report got nothing done to assist them and they are stuck out in the cold with no help from LL a couple gave up and left sl because why spend months creating something to have it stolen and no one will do a thing to help

  39. on 10 Dec 2007 at 8:21 pmjasmine

    Shawn at one level I agree with you completely, SL wants an economy wants you to believe you will get a dollar (you can’t inworld you can only get linden money) and wants you to think the game engine will protect your rights.

    BUT look at the terms and conditions they don’t promise you this, and as you point out they aren’t all that helpful when the game engine fails.

    I also agree with your remedy, that is stop playing their game if you don’t like their rules.

    What I don’t agree with is that real world courts, particularly US Courts unilaterally protecting you, if you are in the US and happy and able to pursue remedies in that Jurisdiction.

    My random thoughts I’m forming slowly over time into a position, and hopefully one day an argument is that it is a matter for LLs and the solutions and remedies should be up to them.

  40. on 11 Jan 2008 at 9:16 amlightnin boy

    So, if I buy the model from the seller in Second Life. Exactly what are my rights to the textures and geometry of that model. Can I only use it in Second Life? Can I use the texture outside of Second Life? Can I resell it?

    What if the model I bought has the permissions that I can modify, copy and transfer? What rights does a person have to sue me if I use it?

  41. on 11 Jan 2008 at 3:29 pmBenjamin Duranske

    @40 – There’s no easy answer to that. It depends on the designer and whatever agreement you reach with him or her. A designer could license a creation broadly or narrowly. Someone could sell textures with a notecard that gives you the right to use them on websites, etc. but usually would not.
    Generally, in the absence of an agreement to the contrary, any rights that aren’t represented by the in-world tools transfer (if you’ve been sold something with full “copy” permissions, you can obviously make copies, etc.) are retained by the designer.

  42. [...] Virtually Blind: Six Major Second Life Content Creators Sue Alleged Copyright Infringer in NY Federal District Court [...]

  43. on 14 Dec 2008 at 5:04 pmMark C

    *** Do you guys think its right for simon to pay thousands of dollars are go to prison over stealing some cartoon clothes and furniture though, realistically? ***

    A crook is a crook, retard. That it’s pixels is irrelevant, moron. The money is real.

    Try pirating software some time and see what the court thinks of a “it’s only bits in a computer” defense.

  44. on 01 Feb 2009 at 8:00 pmMark

    What I want to know is all these people saying they were robbed as a tax payer I want to know if you all paid your taxes and not a just a small % but the actual amount? And if those 6 were the only ones who sued Simon is it safe to assume all the others involved are not paying any income tax on this? I think this whole think is stupid 1 its a game with items you can’t touch, 2 where is the tax money these people are paying and if the game was shut down would we now owe these designers unemployment? 3. Where is the proof he sold or made fakes. and not pics that could be doctored in photoshop not to mention those pictures don’t say who owns the item or items inside. I have read this or followed it since day 1 and seen lots of stories on this and none are the same and where is Simon’s story? where is the Linden’s story. 4. What if these items were able to be copied because of a game glitch and no fault of Simon. I mean is that his fault or anyones fault other then the game for being unstable?

    I think all of this is pretty much a joke and they all should be shut down these designers who if your claiming this is where you make your living shame on you I am sure this was not what this so called game was designed for. For Linden Labs to not do something either against the desingers or Simon or to take measures to protect this from happening in this case or in future cases. And Simon for whatever he did do if it was wrong game or real he should have not bothered was it all really worth it

  45. [...] that every country will have its fair share of “rippers”, and we all know there are people in several other countries who are infringing IP [...]

  46. on 31 Jul 2009 at 2:08 pmScarlett Bessie

    I know this guy too. This is madness and if he copied stolen goods from creators who worked their butt of making, then he deserves what he gets!

    This is a business for a lot of people in here. This is their JOB! They have EVERY right to protect their investments and however they choose to do it is their choice. And considering Rebel Hope is a very good friend of mine I hope justice is served! I know how hard she works.

  47. [...] they have no power to combat. Alderman in particular has been aggressive about responding to these via the legal system (Grei joining him in the second suit), and this suit is the ultimate expression of that. There is [...]

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