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Eros v. John Doe CaptionSecond Life creator Linden Lab is complying with Eros LLC’s subpoena seeking the identity of a John Doe defendant so far identified only as his Second Life avatar, ‘Volkov Catteneo,’ according to an Eros lawyer. Eros alleges ‘Catteneo’ violated Eros’ copyright and trademark on its popular SexGen virtual products.

Eros’ attorney, Frank Taney, a partner at Buchanan Ingersoll & Rooney, confirmed today that Linden Lab has produced “information in response to the subpoena.” The subpoena sought “documents sufficient to show the entirety of any identifying information” provided to Linden Lab by ‘Catteneo,’ and also sought alternate account information, transaction history, chat history, IP addresses, and credit card information.

Taney said that he is currently evaluating the material, and that “it has always been the plan to amend the complaint if and when we establish the identity of the defendant.”

PayPal, which was also subpoenaed, had previously indicated it would comply, according to Reuters. Reuters also reported that Linden Lab had been granted an extension to last Friday, August 3rd. Taney confirmed today that Linden Lab has not filed any motion to limit or quash the subpoena.

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10 Responses to “Linden Lab Produces Documents Responsive to Eros’ Subpoena in SexGen Intellectual Property Suit”

  1. on 06 Aug 2007 at 4:50 pmNobody Fugazi

    You know, I still don’t see the copyright case… I honestly don’t. Using the ‘Sexgen’ name has been done throughout SL, since Sexgen appears to be the Coca Cola of such things – but there has been no indication that there was any actual copying of things.

  2. on 06 Aug 2007 at 5:09 pmpbody

    No confidentiality agreements…? If so…

    Resident A competes economically in Second Life against resident B. Resident A sues resident B in case without merit. Linden Lab happily hands over a lot of irrelevant information to resident A’s lawyer.

    Chat logs include discussions about new products and personal discussions that could damage resident B’s business reputation, but otherwise are not wrongful.

    Resident A is now within arm’s length of information that can be used as competitive business advantage and other information that can be “leaked” to ruin competitor B’s business.

    Congratulations Linden Lab for respecting your privacy policy and setting such faith inducing precedents.

  3. on 06 Aug 2007 at 6:05 pmBenjamin Duranske

    pbody – Good question. The parties would generally reach an agreement about how the documents like that would be “marked.”

    This gets into the nuts and bolts of litigation a little bit, but basically, whenever documents are produced they’re stamped (now, it’s typically done electronically) with little numbers. For instance, these documents might be stamped LL-1 through LL-200 (or whatever). In addition to the number, documents are frequently stamped with a confidentiality legend. One is “Highly Confidential – Attorney Eyes Only.” Documents marked like that can’t be shown to the client, and it’s frequently done that way to avoid exactly the problem you’re describing.

    The big question is whether Linden Lab would view itself as having any obligation to do that under the terms of service and any privacy policies, and without more research, I just don’t know the answer to that. I’ll do a little digging and see what I can come up with. Any readers already familar with the possible provisions that would govern this?

  4. on 06 Aug 2007 at 6:18 pmBenjamin Duranske

    Nobody – I’ve not weighed in on that issue yet, but I probably will at least break down the legal standard and talk about what they’ve claimed at some point. It hit while I was on vacation, and I just never got back to it. I will say this though: I’ve generally found that is that it’s really hard to make predictions on the pleadings. Once the defendant is added (assuming there’s no immediate settlement) we should see a motion to dismiss or two that will provide the first real test of Eros’ case and force a few more cards to the table.

  5. on 07 Aug 2007 at 7:38 amFlipperPA Peregrine

    A few points: the claim states that the offending avatar stole the source code through an exploit, which would clearly be violation of copyright. Also, wasn’t it stated that the SexGen name is trademarked? That would take the question of name out of the realm of copyright.



  6. on 07 Aug 2007 at 9:10 amBenjamin Duranske

    Flipper – those are both accurate points. The trademark claim is to the “SexGen” mark, and the copyright claim is for making and selling “numerous unauthorized copies … and derivative works based on the items.”

    There’s no specifics as to how the copies were made, and a lot of people have focused on that, but it’s less important than it might seem in copyright law.

    For example, if I print up a dozen copies of “Harry Potter and the Deathly Hollows, by Benjamin Duranske,” Scholastic would easily win a suit against me whether or not they have video of me typing it into Microsoft Word. They just let the jury look at both and determine if there was “access” and “substantial similarity.”

  7. on 09 Aug 2007 at 3:20 pmNobody Fugazi

    Benjamin – it is, actually, important I think. This is why:

    I can create a cube prim. You can create a cube prim. We can texture them similarly, and we can put a script in them so that the prim screams when touched.

    Can we sue each other for a copyright violation?

    Let’s say you make a prim as described, and I come along and say, “Oh, he used a library texture and an open source script”. Can I then not use the same texture, the same script, and create the same thing? Of course I can. But would I be violating a copyright?

    The bed itself consists of prims, textures and scripts. The key to this, I think, would be the scripts, as well as animated 3d poses. There was no indication in the filing that the scripts are the same.

    A source claiming to have insider knowledge of all of this swore that the beds were the same. I am unconvinced.

    ‘If the script doesn’t fit, you have to acquit.’

    This does bring in open source licensing, believe it or not – something which Linden Lab has no inherent copyright protections for. Further, it may be able to be demonstrated that the Sex Gen bed itself uses the same script! Which script came first? Ouch.

    This is especially important given that there IS an open source script out there which behaves the same as a ‘sex gen bed’.

    And as far as trademark, even if they get past the fact that the trademark filing happened after the alleged abuse began… in some places, a soft drink is a Coke, regardless of the flavor. In Second Life, a sex bed is often called a sex-gen in the same way. In fact, changing people’s vocabulary that way may work against Eros in a business sense… but in a legal sense… I’m not convniced.

  8. on 19 Aug 2007 at 8:19 amMarc

    Isn’t it a little bit like filing lawsuit for inhumane killing too many monsters in game? Such things should be resolved by their own SL court. Would be much simplier.

  9. on 20 Aug 2007 at 1:00 pmBenjamin Duranske

    Marc – the funny thing about your comment is that there really is a real world lawsuit for killing too many monsters (well, gold farming, anyway) too.…gold-farmers…/

    Where the money is, lawsuits are pretty inevitable.  In this case, Eros was making enough to make this worthwhile.  Also, from what I know of the guy behind it, he’s probably hoping to help establish a legal framework for asserting virtual IP rights with this suit.  Overall, I think it’s good for the grid to get a decision or two behind the TOS provisions that say you get to keep the IP you create in some vitual worlds.


  10. [...] they will be put out of business by exploits 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 [...]

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