A new, non-profit, legal services organization, the Virtual Intellectual Property Organization (VIPO), has opened in Second Life. VIPO advertises that it offers “accessible legal advice concerning virtual property, trade and commerce and the use of real life intellectual property in virtual worlds.” VIPO is the brainchild of Tamiko Franklin (Second Life’s ‘Juris Amat’). Franklin was born and raised in Columbus, Ohio, and earned a Bachelor of Arts in Linguistics from Antioch College, and a J.D. and Master of Intellectual Property from Franklin Pierce Law. She is currently Director of International Legal Services for Matijevich Law Offices in Zagreb, Croatia and Director General of the VIPO. VB interviewed ‘Amat’ by email. “VB” is Virtually Blind, “JA” is ‘Juris Amat.’

VB: In very general terms, what is the Virtual Intellectual Property Association, and why did you start it?

JA: VIPO is a virtual intellectual property legal services organization. I started VIPO to support artistic and scientific creation in virtual worlds. During my initial visits to Second Life I noticed that despite the enormous amount of creation occurring, there was a lack of resources available to resident intellectual property owners. I was most surprised that there was no registry where they could record or deposit copies of their creations. My first intention with VIPO was to host a registry forum, as time went on however, it seemed more important to have an organization that provided access to professional guidance in the area of intellectual property.

VB: I understand that you, personally, are an attorney who specializes in intellectual property issues. Can you tell readers a bit about yourself?

JA: I’m a Massachusetts attorney living in southeast Europe, Croatia, where I work for a small law firm specialized in intellectual property management including administration, enforcement and transactions. My practice centers around international intellectual property transactions and related corporate services such as portfolio evaluation and management.

VB: Specifically, what are some of the services that VIPO will offer?

JA: VIPO offers consultations on outside world intellectual property protection as well as management of virtual property in world. We have assisted resident authors in structuring license agreements, drafting cease and desist notes, even protecting musical works and works of visual art while also providing information regarding related rights.

VB: Which one of VIPO’s services are you most excited about? Can you give readers more detail about your plans for that service?

JA: I’m most excited about our Customs Service. This is part of a new Virtual Property and Trade division that offers virtual trademark watch services and consultations on virtual property and trade to outside world corporations and legal entities. The reasoning being that while residents need assistance with how to navigate and maximize their virtual property rights in the outside world, corporations require navigational assistance in world and we think that we are uniquely qualified to provide realistic and effective advice.

VB: I’m particularly interested in your plans regarding dispute resolution and enforcement of intellectual property rights. What are you hoping to see in the long term there?

JA: I hope to see an effective court system put into place. I’ve only recently learned of the progress made by the Metaverse Republic in creating software that supports enforcement in the judicial system envisioned by the group. I’m particularly excited, however, to know that construction of a Supreme Court is underway. I’m certain, due to the level of expertise behind these ongoing efforts, that something useful for IP enforcement purposes will be created in the not so distant future.

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Outrage recently erupted among Second Life users, particularly those involved in the art scene, regarding the fact that artist Richard Minsky (Second Life’s ‘ArtWorld Market’) has registered the trademark “SLART” with the U.S. Patent and Trademark Office. (See Vint Falken and Massively, among others.)

Not only has Minsky registered the mark (for which a notice of allowance recently issued) but he has also allegedly been speaking with people who use the terms “SLART,” “slart,” and “SLart” to refer to art in Second Life in order to accuse them of trademark infringement and threaten them with legal action. Minsky is using the SLART trademark in-world and in connection with his magazine — a publication concerning virtual art, particularly art in Second Life. His trademark registration covers the publication of various types of works, art exhibitions, and educational programs concerning art.

Easy as Pie — The Basics of Trademarks

First, some basic background on trademark law. In a nutshell, trademarks exist to protect consumers from confusion. A trademark is granted so that a consumer may identify the source of the goods or services he is using, and can distinguish those goods or services from those of the maker’s competitors. As a result, trademark infringement occurs when someone uses another person’s trademark (or something confusingly similar) in commerce, in connection with an offering of goods or services, in a way that is likely to cause confusion as to the source of the goods or services being offered.

Only certain classes of words are entitled to trademark protection. The strongest marks are those which are arbitrary or fanciful — Apple as an arbitrary name for computers, or Kodak as a fanciful term for cameras, for example. The weakest marks are those that are descriptive of their goods — All Bran for cereal, or Quality Inn for hotels. These descriptive trademarks are only entitled to full protection once they have acquired secondary meaning — i.e., consumers hear the mark and associate it with one particular maker of that product. Generic terms are never entitled to trademark protection (e.g., you can’t trademark the word CHAIR or DESK for a chair or a desk).

From Art to Tarts — The Federal Registration of SLART

Based on the spectrum of trademark protection above, I can imagine what most people are thinking — “wait a minute, the term ‘SLart’ is generic! Or at the very least, descriptive, so how did it get registered?” Bloggers have claimed that the word SLart has been in common use to describe art in Second Life for quite some time. If this is the case, then most likely the term is generic, and should not be available to trademark. However, a search on Google for the term “SLart” does not actually reveal many generic uses of the word. There are many references on the web to Minsky’s SLArt publication, as well as a few uses by other Second Life users, but no great slew of common uses of the word to point to in support of a claim that the word is generic.

A much stronger case can be made that the term is descriptive. Given the subject matter of his publication, the term SLART obviously is derived from the common Second Life naming convention of appending “SL” to the beginning of a common word. Here, the result is a word meaning “Second Life Art.” And indeed, the main subject of Minsky’s publication appears to be art in Second Life; its tagline is “a critical review and journal of the arts in Second Life.”

The Lanham Act prohibits registration of a trademark that, “when used on or in connection with the goods of the applicant is merely descriptive … of them” Lanham Act, 15 U.S.C. § 1052(e)(1). Court decisions have further refined this rule to state that the mark does not need to describe all of the purposes or features of the goods or services. Rather, it is sufficient that the mark only describes one attribute of the goods in order to be found merely descriptive. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982).

I think it should be clear that a term meaning “Second Life Art” when used on a publication that is at least in part about art in Second Life, should be considered descriptive. So how, one might ask, did this mark get approved? After reviewing the prosecution history for the mark, it looks like the trademark examiner simply dropped the ball on this one.

For reference, the prosecution history of all recently filed trademarks are available on the USPTO online database at USPTO.gov, including the entire prosecution history of the SLART application.

When Minsky filed his application for SLART, the trademark examiner assigned to the case actually did issue a refusal based on descriptiveness. Minsky responded that his mark was not descriptive because common use of the term “SL Art” included a space. He also argued that the term SLART has other meanings, cited from urbandictionary.com, and largely involving combinations of the terms “slut, “tart,” and “fart,” and finally, that his publications are not restricted to Second Life, but address art from any virtual world.

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There’s a new battleground emerging for Second Life copyright claims: protest screenshots of in-world ad farm installations.

“Ad farms” (collections of skyline-busting animated billboards that have spread across the Second Life landscape) are widely despised in-world because many owners use them not to generate advertising revenue in any traditional sense, but to force neighbors, often who have been there for years, to buy the property on which the advertisements are placed at grossly inflated prices in order to preserve their virtual views.

The current fight involves Second Life user (and noted steampunk builder) ‘Ordinal Malaprop,’ who put some pictures of various ad farmers’ advertisements in Second Life up on Flickr in order to call attention to the problem and try to shame the advertisers into removing the ads. One of the ad farmers, Second Life’s ‘Cytherea Eagle,’ filed a DMCA takedown notice with Flickr. Flickr complied with the notice, and the photographs were taken down. ‘Malaprop’ has posted regarding the incident.

VB ran a “quicklink” about this a few days ago, but more details have emerged. There’s a thoughtful post at New World Notes, and some cheery DMCA bait at The Click Heard Round The World.

Here’s a summary of some of the intellectual property issues, from Wagner James ‘Hamlet’ Au’s New World Notes.

If you’re a photojournalist reporting on the news in New York’s Time Square, you don’t need to get the permission of every business owner whose logo and trademarks will surely show up in the published photo. That’s because there’s already an established legal precedent of fair use. (Especially if the logos are part of the news– for example, photos of an anti-globalization protest outside a Nike store.) Trouble is, every Resident owns the IP rights to their content [...] to my knowledge, no real world court has adjudicated over its fair use by others, in similar contexts.

No matter how this particular incident shakes out, the bigger issue appears likely to recur. Advertising, particularly advertising tied to overpriced land, is a genuine blight on the Second Life landscape. Community action via blogs, sites like Flickr, and in-world publicity appears to be the best way to call attention to the problem. Advertisers who attempt to use the Digital Millennium Copyright Act to curtail legitimate commentary are inviting a lawsuit. Damages are available for frivolous or fraudulent filing of DMCA takedown notices.

Commentary

The analysis at New World Notes is entirely correct, but it focuses chiefly on trademark infringement, which is actually not covered by the DMCA. Though Flickr may well have a policy governing allegations of trademark abuse, it appears that a DMCA notice was filed here, so I’ll focus on copyright issues, and briefly discuss the trademark implications in closing.

I personally feel DMCA claims are all-too-often abused, though they certainly do have their place. As a writer covering these spaces (who regularly finds it helpful to illustrate articles with pictures) I must acknowledge my instinct, and desire, that screenshots of public spaces in virtual worlds, particularly newsworthy screenshots, not be subject to DMCA takedown claims. Happily, this is not an instinct in a vacuum; though untested, the law probably supports this position. That’s good news for virtual shutterbugs.

In terms of legal analysis, there are at least two ways to look at this. One is the same way we look at copyrights on buildings. Here’s a thumbnail of this analysis from the Picture Archive Council of America.

The Copyright Act specifically provides that the owner of the copyright to a building that is located in, or visible from, a public place, cannot prevent third parties from taking or distributing photographs of the building.

The building analogy isn’t a perfect fit, and there are obviously some new issues raised in relation to virtual worlds (e.g. the nature of “public” versus “private” areas in a virtual world where the viewpoint camera is mobile and can be largely disconnected from the user, as it is in Second Life). That said, it seems intuitive — and if one must argue for an extension of the law, that’s not a bad place to start. The same public policy concerns that justify the building exception could be said to apply in a virtual space as well.

On the other hand, another way to analyze this is that every single thing in a virtual world — from flowers to benches to garbage cans to buildings — is “public art.” In the real world, people wishing to print pictures of otherwise copyrighted public art must, generally, seek the permission of the artist. That offers stronger protection for creators than the building analogy, obviously, but it’s a bit of a stretch, and seems to fly in the face of logic to call every single object in a virtual space protected art.

Perhaps most importantly, “fair use” provides a huge exception here under either analysis.

Photographers do not have to seek permission to publish photographs if the use falls under the definition of fair use. I would argue that taking pictures of ad farms and putting them on Flickr (or for that matter, taking pictures of Second Life builds and running them with news articles) amounts to use for “criticism, comment, [and] news reporting,” and thus is “fair use.” So even under the “public art” analogy above, most people’s use of screenshots from virtual worlds would be protected. Notably, selling a coffee table book of famous Second Life art installations would arguably not be protected — and maybe it shouldn’t be. This question forms the basis for some of the most interesting current arguments about copyright law.

The trademark issue raised at New World Notes is arguably even easier to resolve in favor of virtual photographers — a fairly low percentage of Second Life builds are “indicators of a source of commerce,” which is the foundation of a trademark claim. And as noted at NWN, when a trademark appears in coverage about that trademark or news related to the industry in which the business behind that trademark participates, that use is protected (e.g. a story about botulism poisoning at a fast food restaurant can obviously feature the logo of the restaurant where it happened in an accompanying photograph).

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As of today, it has been exactly one year since I wrote my first post and launched Virtually Blind.

A Note of Thanks to Virtually Blind’s Readers

This year saw virtual worlds and multiuser online games explode in popularity, and with that, legal questions were pushed to the forefront. The massive increase in players and users led to quite a bit of litigation, some serious conversations about legislation, and a number of huge internal policy shifts. Legal scholars started weighing in with greater frequency, the mainstream press started to pay closer attention, and the virtual world and game industry itself began really scrutinizing the legal issues that impact these spaces.

It has been my privilege to report on these changes, but I am very much aware that virtual law is, at this point, far better suited to a conversation than a lecture. I can think of no better way to kick off this anniversary post than by saying “thank you” to VB’s readers. Thank you not only for visiting regularly over the last year — though I certainly do appreciate that — but also especially for adding your thoughtful voices to the emerging dialog about virtual law.

The Year in Bullets: Numbers, History, and Thoughts

• I was one naive blogger when I started doing this. It didn’t even occur to me that it might be nice to know how many readers VB was getting until the site had been running for almost a month. The first day that I installed a stat package was February 19, 2007. On that day, VB was visited by exactly 75 people. That seemed like plenty for a site like this. I was absolutely ecstatic a few days later when daily readership broke 100. I had no idea what was about to happen.

• VB now is now read by about 2200 unique visitors every day, give or take a few depending on what’s going on in the world of virtual law. Because many regular visitors hit the site a few times a week, it works out to around 26,000 unique visitors each month.

• Many visitors read more than one article or check the comments, so the site is getting around 2700 page loads a day — sometimes more, sometimes less, depending on what is on the front page.

• Since the site’s inception, VB has had a total of 156,489 unique visitors, and a total of 327,255 page loads. This month (as of January 21st) already accounts for 47,667 of those page loads. At this pace, VB should hit a million page loads mid-summer.

• Every time I check these numbers, I am just shocked at the growth of this specialty, but I suspect the trend will continue for a while. Virtual law is only now getting mainstream recognition, and courts have just started looking at the issues we’re examining here.

• Want to advertise?

• For the first few months, the site’s banner tagline read “Justice, Law, and Politics of Virtual Worlds.” An earlier version included “Economics,” too. I changed it to “Virtual Law | Legal Issues that Impact Virtual Worlds” because I discovered that I didn’t have any real interest in covering politics or economics. I also wanted to focus attention on the term “virtual law,” since nobody seemed to know what to call this emerging field. (I figured that readers could puzzle out “blind justice” on their own.) It turned to be one of the best early decisions I made about the site; with everything that happened this year, VB could not possibly have tracked a broader portfolio.

• There have been 203 posts at VB over the last year. I’ve written most of them, but more and more are now being written by a growing group of very talented guest writers and regular contributors from around the world. Email me if you’d like to write for the site.

• To date, readers have left 1,243 comments.

• Of the 156,489 readers who visited VB over the last year, only one is prohibited from leaving comments. A big thanks to every one of the rest of you for consistently focusing your sometimes strong disagreements with each other (and with me) on ideas rather than people. You keep the dialog here both challenging and respectful, and I appreciate it.

• On a personal note, my avatar in Second Life (the virtual world that I visit most often) changed quite a bit over the last year. Thanks to a custom skin and a new pair of glasses that match mine almost perfectly, it looks a lot like me now (at least when my real-life hair is cut short). An aside for Second Life users struggling to get a professional look for a male avatar — consider getting a high-quality skin that includes texture-based hair, if you don’t mind a close-cropped look. Your mileage may vary, but I have yet to find prim-based hair that doesn’t make my avatar look like he’s a stage magician in his off time.

• About 60% of VB’s visitors use Firefox. That percentage has been pretty stable since the site started.

• About 65% of VB’s traffic comes from the United States. The U.K. and Canada account for another 15%. Another 15% come from Australia, Germany, the Netherlands, Italy, Japan, Spain, and France combined. The other 5% comes from everywhere else. That includes exactly one non-automated visit from each of the following countries/territories: Andorra, Mauritius, French Polynesia, Saint Vincent, Ecuador, Anguilla, Togo, Myanmar, Rwanda, Antigua, Maldives, Belarus, Honduras, Bahrain, Kenya, San Marino, Uruguay, and Suriname. These visits, particularly, make me happy.

• California, with the highest population, is (unsurprisingly) the U.S. state that sends the most traffic to VB. Wyoming, with the smallest population, equally unsurprisingly sends the least. The biggest disparity comes from the District of Columbia, which has just a handful more people than Wyoming, but is 14th in overall traffic to this site.

Search Terms

• Aside from the name of the site and my own name, the search terms that were most likely to lead here over the last year were “ginko financial,” “rase kenzo,” “kwari,” “second life bar association,” “world of warcraft erotic,” “eros LLC,” “club penguin filter,” “virtual pornography,” and “IGE class action.” Each of these has resulted in hundreds of visits.

• At the other end of the spectrum, each of these odd (occasionally disturbing) search combinations resulted in one single hit: “fugazi everybody move,” “virtual rape game,” “fake chair sit,” “age eight to ten in second life,” “superhero game grief.”

Top 5 Posts

These are Virtually Blind’s top five posts in terms of direct traffic over the last year. Some may surprise you.

• #5. Commentary: Ginko Wrapup – No AVIX, IPO, or Funds (July 31, 2007) — The end of last summer’s sad coverage of the Ginko implosion. Legacy? US $750,000 in balances left outstanding, something around US $200,000 in real money deposits missing (around $80k admittedly pocketed by the people who ran it) no lawsuit, no arrests, no certainty about who ran it… and no more banking in Second Life.

• #4. Six Major Second Life Content Creators Sue Alleged Copyright Infringer in NY Federal District Court (October 27, 2007) — When this hit, it made me wish I was practicing. It settled, of course, in the first formal judgment (albeit by consent) of liability for unauthorized sales of virtual merchandise.

• #3. Rampant Trademark Infringement in Second Life Costs Millions, Undermines Future Enforcement (May 4, 2007) — One of my favorite articles; it gave me an excuse to spend several days poking around Second Life taking screenshots. Probably due for an update, now that I think about it. I suspect the numbers are much, much higher now, and there have been a few cases of real world businesses paying attention since this ran.

• #2. Law Journal Says Ginko Financial Probable Ponzi; Yield Down 60% in 16 Months (February 23, 2007) — This article represents the beginning of VB’s Ginko coverage. I updated this post several times as the story of Ginko’s (I believe inevitable) collapse unfolded by adding bracketed material at the top. The original story follows that material unedited.

• #1. Reader Roundtable: “Virtual Rape” Claim Brings Belgian Police to Second Life (April 24, 2007) — This was by far the most visited post on VB over the last year, nearly doubling the second most-hit post’s numbers. Oddly, I very nearly did not cover this story, but it kept popping up in unlikely Google alerts, so I tracked down the original articles in the Belgian papers, got translations, and ran links. Why all the traffic? Regina Lynn linked to this post in her “Sex Drive” column in WIRED (one of VB’s first major links). The article is also footnoted in Wikipedia Germany’s entry on Second Life, and it gets quite a bit of search traffic too. As far as I know, nothing ever came of the investigation.

Top Three Incoming Links

The links that sent the most visitors to VB last year may also surprise you:

• #3. The German Wikipedia entry on Second Life, which points to VB’s “virtual rape” claim article, as noted above.

• #2. Regina’s Lynn’s WIRED “Sex Drive” column, Virtual Rape is Traumatic, but is it a Crime? also mentioned above.

• #1. Second Life Sucks: The Reckoning. In this Something Awful article, which ran shortly after VB launched, Chris “Petey” Peterson takes some fairly funny shots at the site, at the Second Life Bar Association, and at me. The article has generated more overall traffic to the site than any other link in the last year. I think Petey is a pretty good writer. Once he realizes that four years of screwing around on teh intarwebs have qualified him to do nothing except go to law school, I might even let him write for VB.

Closing Thoughts

It has been a blast so far — I have never had so much fun doing something that involves this much work. I very much hope you all keep coming around, participating in the discussions, and making the site what it is.

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