Second Life DMCA Statement Raises Question: Does Provider Expeditiously Remove Infringing Material?
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.
Commentary
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.
Linden Lab has always had a DMCA policy, but reports are mixed regarding the company’s diligence in following up. Some users have reported success, but others have said their notices are ignored.
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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20 Responses to “Second Life DMCA Statement Raises Question: Does Provider Expeditiously Remove Infringing Material?”
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This is the best write up on the problems with Linden Lab’s DMCA policies I’ve read in one place. The problems are not all Linden Lab’s, although many are: quite a few are the burden of the creators. Whenever I’ve spoken with creators, I’ve suggested that it is best to just stick to the facts, and check emotions at the door. That is easier said than done!
Something that has been plaguing me a lot since I heard that LL doesn’t remove items from inventory is this question: is simple possession of a copyrighted work, stored in your inventory, infringing the author’s exclusive rights?
We use the exclusive rights under 17 USC § 106 to determine what sort of behavior is infringement. These rights protect against copying (1), derivative works (2), distribution (3 – the big one), public display/performance (4-6). Certain exceptions in §§ 107-122 apply, specifically fair use (§ 107).
In the case of any item that appears in-world, the analysis is simple: anybody who rezes a copyrighted work without permission is definitely copying, and may also be creating derivative works or displaying publicly. Anybody who sells a copyrighted work from his inventory or the inventory of an in-game object is copying and distributing. Arguably, it seems reasonable to expect that somebody who is making infringing copies of a work should have his master copy (in his inventory) removed in order to effectively stop the infringement.
The question at issue is the simple receipt of a copyrighted item. If Johnny Newbie unknowingly purchases an infringing copy of an article of clothing in-game, but never wears or rezes it, is the version of the clothing in his inventory actually infringing on the author’s right? Is it subject to a DMCA take-down notice?
The short answer is: it probably should be. It’s sitting there with nothing but the potential to infringe. But the longer answer is: how does a copyright owner, under penalty of perjury, state that Johnny’s copy is violating his rights? Without seeing it actually in-use, without it actually actively infringing, is that judgment possible?
This has long been a bone of contention between content creators and LL. It is one of the policy changes I and many other content creators would like to see LL take action on, and it’s one of the reasons we began the IP rights ad campaign.
I wholeheartedly agree that it is the responsibility of content creators to defend their intellectual property, but that’s a difficult proposition when LL seemingly drags their feet on their end of the deal.
I believe it’s just a matter of time before someone does file a lawsuit against LL for this very issue, and that’s a shame because there have been many opportunities for LL to take steps to rectify this situation.
Granted, I wouldn’t be anxious to deal with screaming, irrational content creators, and there are times where I think the passion creators have for this issue works to their detriment. However, I think many creators are now realizing that much of the burden does lie squarely on their own shoulders, and the hope is that through a unified, professional approach to this issue, LL will come to the table for a more civil and less contentious discourse than maybe they’ve been expecting in the past.
Time will tell.
Further, there may be a second issue at play: technology. User-generated content has created all sorts of technological problems for complying with DMCA take-down notices. In a soon-to-be-published note in the Berkeley Technology Law Journal (Ben plugs his work all the time, so I’m going to, too ), I investigate this problem in the Viacom v. YouTube context, arguing that current DMCA safe harbor provisions likely still shield YouTube even though there are repeating copies of infringing movies all over the servers. If YouTube is told to take down a particular “Daily Show” episode, they’re not obligated to identify all the copies of that “Daily Show” episode on their servers. Why? Infeasibility. That would require a huge amount of work on the part of the OSPs, which would ultimately take over too much of their time. It’s important to remember that the legislative purpose of the DMCA was to ensure that most of the policing role remained firmly with the copyright owner.
Second Life may be in the same position when it comes to infringing objects. Although Ben argues above that “Linden Lab has the technology to identify these copies in the database,” I would question the validity of that claim. As we know, SL objects are tracked internally via UUIDs. Everytime an object is rezed in world or moved into another sim, its UUID changes; everytime a script or notecard or texture is changed, its UUID changes. The UUID, then, represents the “current state” of any object in the world. This is obvious – if the UUID never changed, then every time you modified your Hoverboard in SL, everybody else’s Hoverboard would also change.
Thus, although we can identify a single object when it is rezed in world by its UUID, that UUID does not allow us to identify other copies elsewhere in the world. Further, it’s likely, in fact, that Linden Lab’s technology does not track any information that would allow them to find other copies – if they were to attempt to store the ‘parent’ objects of every item, even after modifications, each object would have this ridiculous data stream listing where each element came from, and where those elements came from, ad nauseum, down to the individual building blocks and where those came from.
So, I suspect a court faced with this fact pattern would find that there is no requirement that LL remove all infringing copies when only a few have been identified in a take-down notice. I think that probably represents an impermissible burden shift of the policing power onto Linden Labs.
(when I made that joke about Ben plugging his work, there was a smiley face included that got cut out of my comment. it’s a totally tongue in cheek comment. :-) )
I wonder if some of the underlying system keeps track of the information necessary to remove all infringing pieces or not. It might be tough if a person has to actually verify each manually. E.g. if a texture was bought and then illegally copied and passed around. Would records be there to trace every copy passed out, including the location of the illegal source.
Do they have to differentiate between legal and illegal items in a violators inventory? What would happen if they also traced copies to unwitting recipients (shotgun a bunch to hide which one was your alt).
From a technical perspective I wonder how difficult it is to enforce things like this to the extent necessary without having to face other legal issues (like banning an innocent but important person’s account, or some kind of privacy issue).
@ Brandon
For objects and scripts, I believe this is true (it took me longer to write my comment so I didn’t see yours until after I posted).
For textures, however, there is only a single UUID for the texture when it is passed around and copied (because textures can’t be edited inworld).
You have to upload the file again to get the same texture with a different UUID.
So I think, that some tracking could be done easily with copied textures. I’m also sure that it would be possible to trace copied objects. Its a question of whether they are, or not.
Where your point truly hits home is when that texture was downloaded and then uploaded several times (so they have different UUIDs) and when objects are re-created with scripts from totally new prims (with new UUIDs not connected to the design being copied). I don’t think it would be feasible at all for LL to (technologically) trace all of those.
@7 and @4 – Thanks for the details on mechanisms available for tracking objects and textures. It sounds like textures are fairly straightforward and pose the biggest problem for Linden Lab under this analysis, and individual objects somewhat less so because there’s no mechanism for tracking copies — at least using current technology. Although, isn’t there? Does the system really not keep track of precise creation date and time and creator ID, and if so, wouldn’t that be sufficient to identify all objects once one copy is identified?
I’d love more input on this from somebody who knows — I haven’t fooled around with any of the copying programs enough to know what data is retained/disposed of in the process or how easy it would be to circumvent obvious indicia of copying. I also wonder if something like Flipper’s SLPTO registry ( http://www.slpto.com/ ) would help in this. I believe I recall something about registering textures and/or objects and stamping them some way that makes them identifiable later there.
What we are trying to do with SLPTO is create a stored set of vaulted information on a given date. With textures, this allows the content creators to have a neutral third party store the date they added the asset to our system, the UUID (key) from Second Life of the asset, and a field where they can describe it that can not be changed after it is initially set. This could be used to help determine proof: as an example with textures, the creator could say, “the original file is a Photoshop Document (PSD) file, with 38 layers that is X kilobytes large.” The theoretical texture thief would only have a single layer graphic file (the only kind uploaded to Second Life), and upon presentation of the file, it would be fairly obvious who the rip off artist is.
I just wish Linden Lab had some of the controls we’re trying to build in place for the creators – it would make proof much easier to come by.
As for stolen content, it gets very complex very fast. While content creators (rightly so) want to remove copies of their stolen content and have action taken against the thief (from both in world, inventories, and alts), I’ve heard many say they do not wish to remove the stolen versions from residents who spent money unaware they were purchasing from a thief as long as several conditions are met, most important that permissions are granted correctly so that person can not re-sell the purchased item without restriction.
Regards,
-Tim / Flip
First, thanks for the link. Glad to be of service.
As to your post, let me offer that I’ll agree that Lindens can’t track down second-hand copies of every pirated piece. They CAN, however, remove the reported, offending piece from the database. By doing so, they’re making a good faith effort to try to rectify the situation. Right now, that good faith is in question. That’s not a legal issue…it’s a public relations issue.
@10 – I find myself referring to Second Arts more and more often recently… that’s got to be a sign that copyright issues are really causing a lot of people a lot of heartache right now.
I agree that it’s a public relations issue, but it also really can cause problems for them legally too if they get sued by a creator who feels his or her DMCA notices weren’t acted on appropriately (e.g. by leaving textures in the database). I hope that one of these prongs — the public relations side or the legal side — motivates them to take a harder look at this.
I believe your thoughts of which occurance is the greater abuser of IP within SL is wrong.
Clearly there is much more IP thats is owned by major media companies that are being sold without license within SL than the copying of an idividual users “shoe model” or IP.
Entire regions are dedicated to unlincensed Lucas LTD, Viacom, FOX owened properties that are engaging in ecommerce in a scale much greater than the copybot – store in a box- sex bed resellers.
IP developed over decades and valued at BILLIONS is being used by LL and many of its users to their own financial gain.
Any IPO or Corporate sell for LL must concern itself with this issue. They are a platform and a Publisher— they LL have enjoyed du to the ignoarance of their user base thier cake and ate it too.
Strokers case was just, but its not his IP protection claims that will bring SL and IP rights in VR worlds to a head..
Itll be very soon as a CBS, or a Lucas, or Warners needs to find another MMO licence for a STAR TREK, DC COMICS, STARWARS, POTTER, MARVEL and also needs to defend itself against the lawyers from the failed MMO game licenses already paid for who now see SL worlds on their IP as a breach of their agreement.. These companies deal in tens of millions of dollars for a Video Game MMO license and will not allow LL to continue to profit at the expense of them recieving those fees in a ever tighnening MMO market.
VR WORLDS like any other company had better plan on tight IP controls and editing devices since its hard to beleive that the largest export of the west. IP, will continue to be the stolen fodder for adwords and valuations for tech companies indefinatly.
cube.
@larryr
This is an excellent point.
I was contacted by an individual who purported to be from one of the big video game publishing houses soon after the IP rights campaign launched. They said the company had several employees combing SL looking for infringing content, and were preparing to file complaints with LL. At that point they had uncovered several hundred violations of their content alone, and were less than happy about what they’d found to put it mildly.
This of course raises another issue of creators infringing on the IP rights of not only video game companies but also sports apparel manufacturers, professional sports leagues and their respective player’s associations, RL fashion designers, etc.
The use of Nike’s logo, Major League Baseball franchises, NFL franchises, the names of superstar athletes and Gucci’s brand on in-world products are rampant and invite legal repercussion’s for not just the infringers, but LL as well.
As was pointed out above, LL has deep pockets and would make an appealing target for another RL company who felt LL was ignoring their responsibilities in taking action against pirated content.
@12 – larryr, you may well be right on the idea that big companies are getting their IP ripped off at a higher rate than I indicate here. My last informal survey (Spring, 2007) of big-company trademark (and to a lesser degree, copyright) infringement in Second Life found an unholy ton of it, but I just don’t have a good way of measuring the smaller players who are getting ripped off, so I have no real idea how it breaks down, and I’ve see an uptick in complaints from smaller players recently, so I’m guessing that the widespread availability of tools like copybot have increased the percentage. It’s still a blind guess.
Thinking about it, that’s actually a really good idea for a post — trying to break this down, or at least updating my earlier survey. You are absolutely right that there’s a whole lot of it; it’s just really hard to quantify, so I’m definitely hedging in this piece. More to come (one of these days) on this question.
Yes.
My comment is meant to reach all IP owned by its rightful owners in all businesses.
Unlike many fan websites,- which were under shutdowns in the mid 1990s from the rightful media owners.- the BUSINESS of Linden LAbs is to profit from a user base. To use that user database to either grow themselves more services or to license it to others to sell products and services too.
EYEBALLS and HANDS….
(as the logo that shall no longer be used illustrated.— BTW- I agree LINDEN has the proper rights to define its usage under Trademark law).
IS the currency LL looks to use to profit from. This in mind theres no doubt the dirty secret of SL , like Google/YouTUBE, and most USER GENERATED profit center companies…..is to go as long as you can “profiting” off those to blind to see what you really do.
Live by others IP usage, die by others IP ownership… that will i suggest be the epitat of allmost all web2.0 social media advertising driven attempts at riches.:)
Web1.0 was fueled by Creation/Distribution Tools
Web2.0 has been fueld by Distibuting Stolen Content.
Lets hope Web3.0 focuses on the creation/ distribution/ and renumeration from the owner’s content.
Individuals SL Complaints are only made from those who “know they are hurt usally wanting justice” …. Media Companies complain when the bottom line is affected. and the offender can be hurt. its about money, not justice.
What saddens me is how long this has been “not important”
always the “other guy”…. justice as the joke.
Excuse me if I am misunderstanding something, but if, in the case of textures, there is only one UUID, then there is only one copy on the database, is there not, for both infringing and legitimate users of that texture? The object (such as the skin) is the link that enables the infringing person to access the texture. If the texture was simply deleted, all legitimate users would also lose access to the texture.
@16 – I think that a copied texture gets a new UUID at upload, but I’d love to hear from a reader who has a better understanding of the process than I do.
Ben,
indeed, no doubt if the texture was copied by being downloaded onto a user’s hard drive, tinkered with, and then re-uploaded, it would get a new UUID, since the database would have no way of knowing that it was a copy of the original texture. However, if that was the case, deleting it from the database would be no more effective than deleting the link, since it would persist on the infringer’s hard drive, and could just be re-uploaded again.
@17
I’ve just tested it, new uploads get different UUIDs, even if they’re the same image. This makes sense — what a pain to do an image comparison to determine if the two images are exactly the same. Also, even that would be susceptible to very subtle manipulation — change a pixel, get a new UUID.
@16
I think you’re right. If we argue that LL should take down textures based on UUIDs, then we’d likely be taking down textures that have fair uses.
[...] DMCA notices, they require them to be sent via fax and postal mail and only remove in-world items, not those in inventories or other copies of [...]