Otherwise Occupied - copyright

Copyright suit over Second Life in-world IP

gregh — Wed, 04 Jul 2007 04:19:37 -0500

SECOND LIFE, July 3 (Reuters) - Second Life entrepreneur Kevin Alderman filed a copyright infringement lawsuit on Tuesday against Second Life resident Volkov Catteneo, and Alderman’s lawyer said he plans to subpoena Linden Lab to force it to disclose Catteneo’s real-world identity.

Alderman (Second Life name: Stroker Serpentine) runs the adult-content company Eros LLC. One of the company’s most popular products is the SexGen bed, virtual furniture that contains more than 150 sex animations and retails for L$12,000 (US$45.11).

In “Eros LLC vs John Doe,” filed in the U.S. District Court in Tampa, Alderman accuses Catteneo of illicitly copying and selling the SexGen bed for as little as L$4,000, sharply cutting into Eros’ sales.

If Doe actually copied the creations of Alderman, this doesn't seem any more complicated than tracking down the Does.

This section caught my eye:

Alderman said he tried to report the copyright violation to Linden Lab in accordance with its Digital Millennium Copyright Act compliance policy, but that he was told to use the in-world “abuse reporting” system.

Here is the DMCA policy. It's clearly tailored toward real world content turning up in Second Life. It's not too surprising that Linden Lab would turn them away. Things here get a little muddled.

While users of Second Life "retain copyright and other intellectual property rights with respect to Content [they] create in Second Life," they also automatically grant to Linden Lab "a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to (i) use, reproduce and distribute your Content within the Service as permitted by you through your interactions on the Service, and (ii) use and reproduce (and to authorize third parties to use and reproduce) any of your Content in any or all media for marketing and/or promotional purposes in connection with the Service. . . ." Of course, it makes sense that the Linden Lab must be able to use, reproduce, and distribute the content. How else can the content exist in their world.

The question is, who is reproducing and/or distributing these sex beds? Is Linden Lab an intermediary that must take that content down? That seems unlikely. After all, as long as that content exists in Second Life, it would appear that Linden Lab has a license to copy and distribute in-world. Sending Linden Lab a DMCA notice to take down content that it has a license to copy and distribute does seem problematic.

There are some tricky ownership issues in Second Life, but I don't think this is one of them. I originally caught this on TechCrunch, where Duncan Riley overstates the importance of this case:

The case, the first of its kind for Second Life, will be interesting from a legal perspective. There is no legal precedent for the case, and as Stanford University’s Lauren Gelman said in a Four Corners report earlier this year, the concept of virtual property ownership is vexed:

“All of this is virtual bits and bytes, ones and zeros that are sitting on the servers at Second Life’s headquarters and the server farms they have around the world…how much can you own something that’s really under the control and domain of another party, this is really where the law is being tested to see how they’re going to figure that out.”

On the surface it also seems a little strange that Linden Lab has not already dealt with it; Second Life has strict rules in relation to copyright infringement and has previously acted in favor of in-world copyright owners.

I think he needs to reread that report. The confusing areas are in property ownership. The intellectual property issues are nowhere near as complex, especially seeing as Linden Lab grants ownership to in-world creators. What's more, we don't really get a good sense from the article what Second Life has done about this. It's certainly not their role to award civil damages. If the copying doesn't violate policy, maybe there was nothing for them to do.

Evaluating my role in open source

gregh — Sat, 23 Jun 2007 22:23:35 -0500

Short story, I've done bits and pieces.

Over the last 7 or 8 years, the term "open source" has become a huge buzzword. In some cases, it use actually holds more than mere buzz. In many cases, buzz is really all that it's about. As I sit around taking stock of my background while school slowly comes to an end, I've given some thought to some of my contributions to projects in the past.

Prior to the open source push, there were a handful of licenses that covered software and source code distribution. Principally, there Free Software Foundation's General Public License, a key piece of its push for software freedom, the various forms of the Berkeley Systems Division (BSD) license, and the MIT license (used by X11.) These originated before the Internet became a popular medium, and the result was that the concept of licensing was not well known.

How do I know this? Well, for one thing, I made great deal of use of a programming language called MOPS. It was distributed under the... Well, no license. It was released in the public domain. It was based on a package called Neon, which was released into the public domain. That spawned at least one other version called Yerk (which I also used.) You may note I still retain a credit, though for the life of me, I don't remember doing much significant work on the MOPS core:

Mops implemented by: Michael Hore
Able assistance from: Doug Hoffman, Nao Sacrada, Greg Haverkamp, Xan Gregg

Documentation: Mike Hore, Ed Williams, Nao Sacrada, Arthur W. Green
HTML:

Gnarlodious, Arthur W. Green, Jim Tittsler

I did make a few contributions through the principal newsgroup, comp.lang.forth.mac. See here and here.

Then things slowed down for a while. I started working in software companies, and in the mid-90s, most companies weren't too keen on the idea of giving away any intellectual property. For instance, a wrote a system to do firewall reporting for old Linux ipfwadm-based firewalls, while I was at Instinctive (now, basically, represented by this product of EMC.) When I asked to share this series of Perl scripts that generated some useful statistics and analysis -- developed on software licensed under the GPL -- you would have thought I wanted to give away the keys to the kingdom. I was lectured on how, as a small startup, all we had was our intellectual property, and the very idea of giving any of it away was insane. I later wrote some Java web stuff I thought was very cool, but that, also, was apparently too critical to the business, in spite of the fact that the CTO seemed to absolutely hate Java back then.

At Curl, we had grand plans. MIT Curl was actually released under an MIT license, and we thought we'd be releasing some components of commercial Curl under a spiffy license. But they didn't really need me around at Curl, and I left after only 8 months.

That's when I ended up at ArsDigita, where the founder, Philip Greenspun, was, for all his other faults, a huge advocate of Free Software. Our "framework," the ArsDigita Community System, was released under the General Public License. I contributed a couple of modules (a calendar widget and the bulkmail module.) I'm sure I touched some other pieces, too. In the end, it wasn't our use of the GPL that killed us, but rather the grandiose visions of going public that our founders held.

More recently, I've seen some of the value of open source creep up again. We were having some problems at work, and there was a demand that we investigate better mail systems. Curious, a couple of us started poking around into the problems, and we discovered it was this bug in Thunderbird. With about a day sifting through the Thunderbird message drafting process followed by a few lines of code, I fixed that 4-year-old Thunderbird bug. If you have Thunderbird 2.0, you've got a very small amount of my code in there.

Then, two weeks ago, it became imperative to get the Sympa mailing list manager up and running. I decided I'd use SQLite to do so. Unfortunately, there were some problems, and I spent much of my critical time trying to get things done hunting down an unknown bug in Sympa. Apparently there had been no testing of SQLite in the 5.3 release.

In the end, I'd say at best I've been an active user of open source, contributing little bits and pieces here, but certainly I've never really been an open source developer.

YouTube copyright pedantry

gregh — Mon, 19 Mar 2007 02:25:09 -0600

In all the fuss over Viacom v. YouTube, I've been reading a lot of folks write things about how YouTube must do more to prevent the posting of copyrighted material. I've even read and heard it from other law students, who should know better.

The vast majority of content on YouTube is copyrighted. If the content was created in the United States, most of it is likely sufficient to have been copyrighted as soon as it was fixed in a tangible medium. There's no notice requirement, and there's no registration requirement. Create and fix. Boom. Copyright, unless the holder disclaims copyright protection.

What this means is that the real complaint is that YouTube may not be sufficiently policing the distribution of material posted by users who did not have license to post that material to YouTube. In the Terms of Use, YouTube requires that users:

[A]ffirm, represent, and/or warrant that: (i) [the user] own[s] or ha[s] the necessary licenses, rights, consents, and permissions to use and authorize YouTube to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service . . . .

Users also agree not to "submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights . . . ."

And that original, copyrighted content?

For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successor's) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website.

YouTube is loaded with copyrighted material, and it's perfectly acceptable for it to distribute that content. Users have licensed distribution rights to YouTube for that content. The problem is that material that has been posted by users who, despite their assertions under the Terms of Service to the contrary, do not own the rights to the material they are posting. The answers to that problem are covered by the DMCA. How best to read the answers is the source of the Viacom conflict.

BCLT liveblogging: Reactions

gregh — Fri, 09 Mar 2007 10:56:58 -0600

Andrew Bridges from Winston & Strawn is speaking now, taking a decidedly anti-DRM stance. Among other things, he's pretty clearly mocked the standard plaintiff's argument that lack of integration of DRM necessarily makes application vendors liable for contributing or encouraging infringement (I'm sure he used much more precise wording than mine.)

But what was funny was watching some of the reactions, particularly what looked to be disapproving comments going back and forth between Tom Rubin of Microsoft and Victoria Bassetti of EMI, who clearly didn't agree with Mr. Bridges' comments.

BCLT liveblogging: Todd Albertstone of Real Networks

gregh — Fri, 09 Mar 2007 10:26:50 -0600

Notes that Rob Glaser suggested eliminating DRM from music downloads well before Steve Jobs, plus "he really meant it."

I'm not sure why so many people think Jobs wouldn't be just as happy selling music without DRM.

BCLT liveblogging: Tom Rubin from Microsoft

gregh — Fri, 09 Mar 2007 10:05:47 -0600

I'm sitting here at the BCLT symposium on Copyright, DRM Technology, and Consumer Protection. Tom Rubin from Microsoft, who recently made a name for himself by attacking Google, is now speaking, trying to draw analogies between physical protection and DRM.

For instance, he cites the account/payment requirement to read WSJ online content as a form of DRM. I suppose there's some validity to that comparison. However, it should be noted, once a user logs into the WSJ online, there are no further restrictions on the use of that content. There is copyright and user agreements, sure. But that's different. He suggested library circulation policies as an analogy, except that that's a limit to physical resources, and once users have physical access, fair use again comes into play.

Cinderella and the Step-sisters?

gregh — Wed, 10 Jan 2007 14:28:21 -0600

Two posts within a small window today, addressing two different areas of IP law. First, Prof. Madison of madisonian.net suggests the MedImmune decision contained a small swipe at the haughtiness of patent lawyers:

There’s a Brahminic quality to the argument. These patent lawyers deal in “science” (as in, “I’m not a real doctor; I have a master’s degree — in science!”), and because they deal in “science,” they deal in legal arcana that are more challenging and more important than the arcana that challenge ordinary lawyers. Especially mere copyright lawyers. In more serious terms, the argument tracks the stereotype that “science” and “the humanities” are two independent and distinct forms of knowledge, and that “science” is more rigorous and therefore more important than the humanities. Patent law is the highest calling of intellectual property law because science is somehow more fundamental to social and cultural development than are other forms of knowledge.

To which the Supreme Court might be saying, in an attentuated way but in this respect (if not necessarily doctrinally, in MedImmune) rightly so, “phooey.” (The Church Lady uses refined language, after all.) In the sense that we all know the world via forms drawn from the sciences and the humanities both, we are all, with Judge Rader, “patent lawyers.”

Meanwhile, William Patry of Google, announcing the release of his copyright treatise, wrote the following about some of his goals while writing the treatise:

One reason the book took as long as it did and is as big as it is, was my desire to break out of the specialist's blinders which I had voluntarily donned to my detriment for too many years. For too many years, I believed that copyright law was special, the Cinderella of the law, as some referred to it.

So, bringing these two posts together, Copyright is beautiful, but too few people recognize that, and it therefore lies has been overlooked. Patent, meanwhile, is the overbearing, self-important sort, that maybe just isn't as special and as beautiful as it would like to think.

USTR forces closure of allofmp3.com

gregh — Tue, 28 Nov 2006 15:35:55 -0600

See the fact sheet for the details:

Fighting Internet Piracy

The United States and Russia agreed on the objective of shutting down websites that permit
illegal distribution of music and other copyright works. The agreement names the Russia-based website allofmp3.com as an example of such a website.

Allofmp3.com's position was that they were authorized to sell in Russia, and that they, therefore, could sell online to anyone. It always seemed a stretch.

The USTR acting, though, and specifically naming this one site -- which must be bigger than I thought -- is evidence of the power of the recording industry. I'm sure there was a feeling that it needed to be nipped in the bud before people have bandwidth that would make widespread video distribution from foreign locales just as prevalent.

It will be interesting to see where they move to.