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Creators CaptionA 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. In the judgment — which still must be “entered” by the court to take effect — Simon agrees to a number of terms and conditions, including the following.

  • Simon will pay $525 in damages for profits made through unauthorized use of the plaintiffs’ intellectual property via “unauthorized copying and distribution of plaintiffs’ merchandise.”
  • Simon will represent, under penalty of perjury, that no one assisted him in his copying efforts and that he profited only $525 by his actions.
  • Simon will make his PayPal and Second Life transactional records available to the plaintiffs’ attorney.
  • Simon will inform plaintiffs of any future “alt” accounts in Second Life.

The parties — the six content creators and Simon — all also agree that they will “not make any further comment on the terms of this Order [...] or the negotiation of the terms of this Order, or the events giving rise to this Action.”

While the judgment must still be formally entered by the court, settlement agreements like this are typically honored, so the matter is essentially concluded. The six content creators “win” the lawsuit with this kind of judgment; that would not be true if they had simply dismissed the claim.

Although the claims largely centered on intellectual property, if the judge — the Honorable Sandra Townes, in the Eastern District of New York — enters the consent judgment as written, including its reference to copying of “merchandise,” the judgment will stand as the first formal, if tentative, recognition of virtual property by a U.S. court. Though the judgment will not have as significant a precedential value as a contested decision on the merits would have had, it will be cited for the foreseeable future.

Reuters reported last week that Simon had rejected a larger settlement demand, and that at the time, he planned to fight the charges.

This post will be updated if and when the judgment is entered. Depending on the court’s procedures, that often occurs within days of filing.

[January 3, 2008 update: the consent judgment was signed by the court and entered without modification.]

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15 Responses to “Second Life Content Creators’ Lawsuit Against Thomas Simon (aka Avatar ‘Rase Kenzo’) Settles; Signed Consent Judgment Filed [Updated]”

  1. on 03 Dec 2007 at 11:27 pmcsven

    Though I’m not surprised, I am disappointed. He had such spunk.

  2. on 04 Dec 2007 at 8:45 amJulynn Lilliehook

    This illustrates the futility in bringing RL suits for SL damages. I wonder how much both sides spent in attorneys’ fees and for the cost of litigation? In the end the plaintiffs get to split $525.

  3. [...] Benjamin Duranske writes on the Virtually Blind blog: A judgment by consent (.pdf) was filed today in the copyright and trademark lawsuit six [...]

  4. [...] the settlement of the ‘Rase Kenzo’ case in Second Life, we now have a precedent for calling virtual goods “merchandise.” Although the claims [...]

  5. on 04 Dec 2007 at 3:04 pmBenjamin Duranske

    I should make something Greg Lastowka pointed out over at Raph’s site clear here: this is definitely not a virtual property decision per se, where the property is evaluated divorced from its intellectual property components. That said, the somewhat odd language (e.g. “copying … merchandise” “destroy … merchandise”) makes me think that this is going to get cited as a precedent in virtual property cases, even though the core claims were actually IP claims. This seems particularly likely given that there’s not much out there on point — at least not yet — so courts and attorneys will look to each decision for as much meaning as they can wring out of them. It’s lousy precedent, it certainly won’t be published, and it can only be cited in some courts, depending on their local rules, but it’s something, which is more than anyone had before now.

  6. on 04 Dec 2007 at 6:29 pmjasmine

    Well why would SL be any different to first life: when it comes to weighing up ones options when sued by 6 businesses together $525 looks like a win for Simon to me.

  7. on 05 Dec 2007 at 8:22 amJulynn Lilliehook

    This “consent judgment” has no precedential value. It is merely the memorializing of a settlement agreement so that if the defendant breaches the agreement, the lawsuit can be revived and contibue to trial.

  8. on 05 Dec 2007 at 10:04 amBenjamin Duranske

    @7 – do you find that people cite to things like this anyway, if local rules allow it? I have found they do, even though it’s hardly a “best practice.”

  9. on 09 Dec 2007 at 2:34 amjanneke

    hahah great they sued him. lets hope this makes it possible to sue texture rippers too

    I hope he has to pay the costs of the court and lawsuit too

  10. on 10 Dec 2007 at 6:52 amAnonymous Designer

    No, this isn`t a win for Simon. Thank you all 6 of you, on behalf of all (sane) content creators, for going after this thief.

  11. on 10 Dec 2007 at 8:31 pmjasmine

    You use the word ‘thief’ I’m assuming you mean it in a non-technical sense, but I’d be interested in a reasoned position on how and why the Courts should protect those who use Linden Labs tools and programs to create ‘content’.

    Lets say I’m an Australian creator and I sue you for copying a creation of mine in an Australian Court. You are going to happy to fly to Australia and defend yourself in our courts?

    I think it is an absurd proposition. But I’d love to hear someone actually argue the underlying rationale or basis for the application / extension of IP to objects created under a contractual relationship with a supplier (LL) – remember ‘your’ creation (as a whole, and without the whole you have no commercial value and no damages from unauthorized copying) just doesn’t exist without them.

    I haven’t seen an underlying rationale. I have just seen play ground ‘he copied my sand castle’ I’m going to get him stuff. Well the whole sandpit, every grain of virtual sand is LL’s.

  12. on 11 Apr 2008 at 5:32 pmMontana Corleone

    @ jasmine. You forget two things: one is most of the rights under the US Copyright Law, and hence DMCA, are there from the Berne Convention, which applies to, and is respected by, signatory countries, which is almost every one, including China and Russia, because adherence to the Berne Convention is a prerequisite of membership to both the WTO and the EU.

    Secondly, all LL owns is the data, not the copyright, which they very clearly state in their ToS that the user retains rights to. The data is just the medium for the copyright work, exactly the same as a CD or DVD track is just the pits on a plastic disk, or the ones and zeroes in your computer. That is not copyright, it is the work itself, the music or movie that the data represents that is the copyright work. Just as the disk itself is not copyright. When you buy a CD or DVD, you buy the disk, so you own that, along with a license to use the copyright work contained in.

  13. on 14 Dec 2008 at 5:18 pmMark C

    jamine, you don’t seem too bright.

    The fact that this happened in SL is utterly irrelevant. Person A created some artwork, retaining copyright. Which is the RIGHT TO COPY. Person B stole the art and made money from it, which is against the law.

    International copyright matters are international copyright matters. Your point about your being in Australia is no different than if I stole an original artwork of yours off your web site and started distributing it from the U.S. It may be difficult to prosecute because of the small amount of money involved, but again the medium (web, SL, whatever) has dick to do with it.

  14. on 06 Dec 2009 at 5:29 amcryptid

    And when LL shuts down SL or the company goes under or one pissed resident bombs the hell out of them. All their data storage goes or is deleted..all your accounts..all your “intellectual property” GONE…and all those years you wasted creating stuff in SL you realize you missed out on a lot of life. because you were too worried about someone “stealing” your “idea” or “art” that has no bearing or use outside of SL. All those years you spent hundreds or thousands of dollars that you have wasted when you could have bought yourself a new car, home, food for your kids, used for bills or credit cards your now behind on. You were too busy with SL to notice your kid just swallowed your bottle of xanax or the cleaning solution under the sink…your kid drowns in the bathtub or in the pool out back not because you were stoned but because you were too busy “creating” your “business” in SL.

    I will be outside having fun in the sun stealing your car or getting your daughter pregnant while your zoned out on SL and could care less about the world going on around you.

  15. on 13 Feb 2012 at 1:28 pmCalla Cela

    Note: the avatar known as ‘Rase Kenzo’ is still in SL when searched as of February 2012.

    So much for SL support for content creators.

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