April 15th, 2008 by Benjamin Duranske
Linden Lab, creator of Second Life, recently posted guidelines for protecting your copyrighted content in Second Life. The policy largely focuses on the DMCA (Digital Millennium Copyright Act). From the guidelines:
The DMCA provides a specific process for removing content that’s much faster and less expensive than a copyright lawsuit. Otherwise, courts resolve copyright claims – usually only after reviewing evidence about a work’s creation, ownership, permissions given, and defenses like fair use.
This is accurate; the DMCA is an important tool in a creator’s IP enforcement toolbox. Filing a DMCA notice is much cheaper than filing a lawsuit, and to the extent that an online service provider (which Linden Lab clearly believes it is, according to the guidelines) complies with the Act, it can be a very effective way for a creator to inexpensively police infringement. That said, it only works — and only shields the provider from liability for infringement — when both users and the provider comply with all of the requirements of the DMCA.
There is a reasonable argument that in spite of its recent moves to make the DMCA process easier for users, Linden Lab is not complying with its obligations because it is not removing all infringing copies when DMCA notices are filed. This, arguably, opens Linden Lab to a lawsuit for vicarious or contributory copyright infringement by depriving it of the protections of the DMCA.
Let’s get this out of the way right off the bat: copyright infringement in Second Life is widespread. Some of it involves residents using the intellectual property of mainstream companies without a license (e.g. selling unlicensed Harry Potter and Star Wars products, playing streaming music in clubs without payment to the artists via ASCAP or BMI, selling unlicensed e-books, etc.) but a lot, probably the majority, involves residents selling unauthorized copies of other residents’ copyrighted creations. Because Second Life allows unfettered building and offers a fairly robust programming (“scripting”) language, users can, and have, created a number of tools that allow people to copy other people’s creations. These tools have non-infringing uses, so Linden Lab allows them, but takes action when they are used to infringe copyrights.
My guess is that many of the apparently ignored requests were actually improperly formatted, though I’m sure there have been cases where properly formatted requests were overlooked. A few attorneys I’ve spoken with who represent virtual world users have said that requests filed on behalf of their clients have generally been acted on, although it often took some time. This may be because a request from a lawyer gets a bit more attention, or it may simply be that these requests are likely to include all of the required information.
As Linden Lab points out, the DMCA process is somewhat complex:
It’s important to note that the DMCA process is a legal process. The U.S. Congress created it for online service providers like Linden Lab because it’s hard for them to know whether a work is infringing without a court’s determination. So it’s critical to follow the steps in the DMCA policy. [...]
To help with information required under the DMCA, we’re also developing a new form for submitting DMCA claims. The goal of the form is to help Residents provide all the necessary DMCA information upfront and reduce the number of claims that require supplementation (which slows down the process because we need to ask the Resident who filed the claim for more information).
Streamlining the process should help users file complete notices. This makes it easier for Linden Lab to do what it is supposed to do under the DMCA.
There have also been complaints about the time it takes for Linden Lab to act on notices. If it takes eight weeks to remove infringing content (as creator ‘Cal Edman’ alleges), there is an argument that Linden Lab is not “acting expeditiously” to remove infringing copies, in violation of its DMCA obligations. The creation of the reporting tools mentioned in the guidelines, and the deployment of additional human resources to address DMCA notices (which Linden Lab also says it is now doing), should help address these concerns.
However, there is one significant criticism of the way Linden Lab handles DMCA requests that remains a serious problem: users report that Linden Lab only removes copies that are “in-world,” and does not remove copies from inventories or remove copied textures from its database. If this is true — and it appears to be given the widespread gnashing of teeth over the issue and Linden Lab’s silence on the question — there is a reasonable argument that Linden Lab is depriving itself of the “safe harbor” protection of the DMCA by not complying with its DMCA obligations.
Several readers sent me notes about this, and the question was also raised on Second Arts, which cited a comment from a user going by ‘Neural’ on the Linden Lab blog. From that comment, which is directed at Linden Lab:
YOU need to do your part on DMCA’s and follow the law as well by removing all instances of a stolen item, THIS INCLUDES THE DATABASE, not just in world copies which are easily stored on the alternate account of any individual who makes their money off of stolen content.
YOU need to boot the confirmed thieves instead of just slapping them on the wrist because you don’t want to lose their tier money.
YOU need to act more quickly when proper DMCA’s are filed, and work to prevent the individuals responsible from simply signing up another account and starting over again.
This is NOT about how the content creators haven’t been doing what they need to. Yes, the DMCA process is difficult to understand, but why bother spending the time to go through the process when Linden Lab will not enforce it as it is required to be enforced?
One problem with not removing the infringing material from the database itself (rather than just in-world content) is that a copier can make hundreds of infringing copies of someone else’s creation, put a few out for sale, and give the rest to an “alt” account. Then, when a DMCA notice is filed, Linden Lab will only delete those few copies that are in-world, and the infringer will use the alt account to copy and offer a few more, and then transfer the remainder to yet another free “alt” account. Even if the copier and the “alt” that put the items out for sale is banned, the copies that were sold still exist in the world, as do the copies that are being kept in “inventory” in another alt account.
Another important point is that when the copied “texture” still exists in the central database, producing more copies is relatively trivial. One commenter on the official Linden Lab blog, ‘Hulk Ah,’ notes:
A stolen skin [an object that controls an avatar's appearance] does not ‘contain’ a texture and thereby is in my idea not the actual infringing content. The skin simply contains the link to the texture on the database. This is where the actual infringing content is located. So theoretically one should be able to file a DMCA to the texture UUID-location on the asset server…
‘Neural’ and ‘Hulk Ah’ have a very fair point, and it is one that Linden Lab should pay attention to. The purpose of the DMCA is, largely, to shield “online service providers” from copyright liability for the infringing actions of their users when the provider removes infringing content when it is called to the provider’s attention. However, this “safe harbor” is only available if the provider “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” If Linden Lab is not removing everything, including copies in inventory and textures in the central database, is it really complying with its DMCA obligations?
There is a reasonable legal argument that Linden Lab, by not removing infringing copies of items from the inventories of the copier, his or her alts, and from purchasers of infringing products, and by not removing infringing textures from its database is not “expeditiously remov[ing] or disabl[ing] access to the material that is claimed to be infringing.” It would be different if the copies and textures were stored on a user’s personal hard drive, but in the case of Second Life, they are not — the material is stored on Linden Lab’s servers, and Linden Lab has the technology to identify these objects and textures. To the extent that Linden Lab has an obligation to remove these copies and textures and does not, a claim could be brought against the provider for vicarious or contributory copyright infringement.
Linden Lab could claim that copies in inventory and textures in its databases could not properly be subject to a DMCA notice because the user filing the notice would not be able to correctly identify these copies, but the argument is weak. If I were filing a DMCA on behalf of a user, I would specifically identify copies held in inventories and textures stored in the database in the notice, and would push the provider to take action on those infringing copies.
If Linden Lab is not removing all infringing copies under its control when a properly formatted DMCA notice is filed, it is on fairly thin ice. Although most instances of copying are not going to be large enough to justify a lawsuit, a few are, as last year’s two lawsuits on behalf of Second Life creators demonstrated. While individual users may not have deep pockets, Linden Lab does — and that makes it an attractive target for a litigator looking to justify the high cost of filing a suit. Linden Lab would do well to find a way to remove all infringing content when a DMCA notice is filed, otherwise, it may find itself named in a suit for contributory and vicarious infringement.
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