Joshua Nightshade

No it's not that difficult, and their excuses are ridiculous. They don't want to get involved with policing anything but unfortunately that's a fucking cop out because they provide us no tools to do it ourselves, or expect us to sue everyone for significant amounts of money in cost verses getting a reasonable return.

They should hire several people who are just dedicated towards dealing with disputes like this. But from my fingers to god's ears I guess.

__________________

Cindy Claveau

Someone needs to correct the Second Life Wiki:

Cocoanut Koala

I would certainly hate to see residents empowered to make these decisions and take down other people's content.

As I understand it, the law is that a website or other entity has to honor a DMCA notice and take down the content. But they also have to honor the counter-notice lodged to take issue with the DMCA notice. (Which always seemed a little odd to me, since the whole thing could just ping-pong back and forth.)

If, as has been stated, LL is ignoring these DMCA filings, then they are apparently not acting as they are legally required to.

I was very surprised to read that nothing had happened in some cases where people had filed a DMCA.

coco

FlipperPA Peregrine

I think they're in danger of losing their safe harbor provision for several reasons, and I'd love to hear your thoughts on these two points:

(1) From what I have heard from content creators I know and respect, Linden Lab has been quite unresponsive to DMCAs that have been filed with substantial evidence to back them up (as witnessed by Stroker's quote on your site; he even tried to email Robin and Philip after DMCAs, abuse reports, and support tickets failed to elicit any response other than "contact legal").

(2) Even when Linden Lab has taken action on a DMCA, all they have done, AFAIK, is remove the offending content from in-world locations, and not from the inventories of the offending avatars. This would allow a thief to be set back up in a matter of minutes. Correct me if I'm wrong, but I'm fairly sure the DMCA doesn't distinguish between "in-world" versus "inventory", and both servers are hosted by Linden Lab. Wouldn't this eliminate the safe harbor provision by not removing the offending content - or at least freezing it during an investigation - from inventory as well?

And again: WAY TO GO to the team putting this together. Y'all deserve a ton of credit for putting this loser in his place.

Regards,

-Flip

__________________
Peregrine Salon: Flip & Jenn's thang.

Cindy Claveau

Me too, but that's exactly what they said they wanted regarding "broadly offensive content".

I wish I could find it - about a year ago, Philip made the comment that they wanted to get out of the business of enforcement as much as possible. So none of this should be a big surprise - except that if they're the owners of the grid, they do have a certain responsibility. Nobody else is empowered to do any enforcing.

Benjamin Noble

That's right. Your first point ties in, so I'll just answer both at once. The analysis is actually really simple on this one. I'll parse out the important parts of the law, which says:

"A service provider shall not be liable for ... infringement of copyright [for user] storage ... of ... material ... if the service provider ... upon notification of claimed infringement ... responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."

http://www4.law.cornell.edu/uscode/h...2----000-.html

As laws go, this one is pretty straightforward. If a provider "responds expeditiously to remove or disable access to" infringing material, they're off the hook for it. If not, they lose the protection of this provision.

The way it would play out is that you'd file a lawsuit, name them as a co-defendant on contributory and direct infringement grounds (same way that Kaaza, Napster, etc. have been sued) and attach your DMCA notices. You'd be arguing both that they facilitated the infringement contributorily, and that they are liable for it directly for failing to take it down. They'd have arguments (e.g. too complex to remove items, they really did act expeditiously, etc.) but the claim appears completely reasonable to me.

Travis Lambert

Wow - great post, Aimee.

I've got some strong feelings myself about the RIAA, and DRM in general. But, this case certainly makes me see the other side. My brain is twisting around trying to justify why I see Stroker's case as perfectly acceptable, but RIAA suing & intimidating filesharer's as unacceptable.

Perhaps its the knowledge that its big corporations like Sony and Viacomm geting shafted, rather than little guys like Stroker or Asri.

While I seem to be in a philosophical quandry right now, I think Aimee's analyisis is spot on: Buisness models that rely upon enforcement of DRM for success are in for a really bumpy ride going forward.

Cindy Claveau

I was pondering this yesterday, and while the bare-bones of the law are pretty similar in these cases, I think public sentiment was against th RIAA simply because the artists upon whom they rely for their revenue aren't getting much of the money they make. Producers and distributors are getting the lion's share of the money.

If Jammie Thomas had been found liable for the 5 or 6% of total worth of the songs she shared to reflect what the artists actually lost, maybe so many people wouldn't have been so outraged at the amount of the settlement. A quarter of a million dollars was way over the top, IMO.

In SL, the creators and distributors are the same people. And the actions of people like Thomas Simon inflict a much greater measurable harm on the victims than Jammie Thomas did by sharing some songs.

Cocoanut Koala

Haha, well, I don't have any trouble twisting my mind around it, because it's wrong in both cases! If I'm going to do it, I'm going to be doing something I know is wrong.

(Not as wrong as other things, maybe, or as wrong as taking advantage of a smaller person - there are degrees of wrong; but still basically wrong.)

Now, I may be doing wrong BECAUSE of my feelings that they had it coming to them for charging too much or whatever (substitute your own feelings there whatever they may be), but it won't mean that I'm doing isn'twrong; it would just be WHY I'm going ahead and doing wrong.

That's my take on it, anyway.

coco

Aimee Weber

Well remember that this case is being filed against one individual who is single handedly building a business on the mass resale and distribution of stolen content. The music industry equivalent would be if I opened my own online store that boldly sold ripped music and CDs. I think this particular lawsuit is justified and on solid moral grounds.

But you did get the gist of my post. This lawsuit will not put an end to decentralized content theft such as torrents and the casual passing of copies to friends and acquaintances. If content creators decide to take the litigious path to dealing with this problem they are very likely going to be following in the footsteps of the RIAA. I think it will go like this:

1. Sue/raid large, centralized illegal resellers (this is where we are now.)

2. Sue/raid organizations that facilitate the free trade and distribution of copied goods. (Napster, SL Yardsales, etc.)

3. Begin an educational campaign in hopes of convincing the general public that copying content is wrong ("If you accept unauthorized freebies you're downloading COMMUNISM!")

4. Litigate against average users who trade content for excessive amounts of money (Such as Jammie Thomas' suit for 1/4 million dollars for sharing 24 songs. or an Amy Weebler suit for 1/4 million dollars for sharing 24 skins.)

This is a conclusion I cannot support. The problem is, I don't see how content creators can go with HALF a litigious strategy on this. They've taken a first step down the litigious path, and knowing that it will not end the distribution of their goods, they're going to have to keep walking down that path or change their business model.

I don't see any other way.

FlipperPA Peregrine

I'd really like to hear Jamie Bergman's take on this. The SL permissions system is not the law, and when a freebie is released under certain licensing arrangements, the implication could be that it is not be be resold. This could get more interesting.

Regards,

-Flip

Cocoanut Koala

This is a good point.

Take this business of Prince filing a take-down suit against the mother who shared the picture of her baby dancing on UTube, which happened to have like 29 seconds of a Prince song in the background (not even very audible), as that is what they were listening to at the time. A total of 27 or 29 (I forget which) of her friends and family had viewed the tape.

This would be at one end of the extreme, almost like opening up someone's mail and finding a videotape of their baby that they were sending to their parents.

As opposed to, as Amy says, someone taking the material and setting up shop with it, selling and marketing the Prince song for profit as if they had written and sung it themselves.

That would be the other extreme (and the true purpose and spirit of the law in the first place).

I might agree that it is wrong to accept a pirated copy of software, or of music, but I could not agree in any way shape or form that it was wrong for that mother to tape 29 seconds of her baby dancing to a song and put it up on youtube.

And accepting a friend's copy of software, by turn, is a far lesser crime than marketing it as your own and attempting to profit from it.

coco

Michi Lumin

I do not agree that this will go down the same path as the RIAA as the scales are vastly different.

The DMCA has often been successfully used when large magazines such as National Geographic have ripped off independent photographers. (It has happened.) - There is no slippery slope nor public backlash against these photographers for using the DMCA.

Any law can be used as a weapon or used improperly. The issue with public perception and the RIAA is that they are bludgeoning recipients and end users. I do not think that these lawsuits have to go there.

Certain things will be 'out of the bag' once distributed, yes. But with the RIAA you have a one-to-very-many relationship.

I'm a content creator, but I don't like the RIAA's tactics. In the case of Napster, etc, you have a lot of people infringing without even really knowing it.

Right now, as it stands, in SL, people who copy items and set them for sale are fully aware of what they are doing. IT isn't passive. It's very participatory, and it's active.

I do believe the analogy would be much more apt if a local band was suing a local shop who was selling CD-Rs of their discs, rather than comparing it to a nationwide industry body suing millions of people who unwittingly downloaded mp3s.

(I don't neccessarily believe that this makes the RIAA right, but I also don't neccessarily believe it makes downloading pirated MP3s 'right', either.)

I don' t think this is a case of 1:1 comparisons and black and white moralities. There have been many copyright infringement cases in the past other than the RIAA's -- the RIAA did not invent the practice of protecting copyright.

Therefore I don't think it can neccessarily be said that this situation will follow an identical path. It already is quite different, due to the scale of the participants and infringers, and the nature of the platform being used to infringe.

Scale, situation, technology, intent, positioning - none of it is identical. (And as much as people like to sterilize it - we ARE still talking about a social platform here with communities. That could 'lightly' be said of Napster, but not quite.)

Giant corporation bludgeons little guys for stealing from mega-rich rockstars.

Independent creator protects themselves from just-as-big guys stealing their 'somewhat average earnings'.

In the public's eye, it's not the same thing. While the RIAA is definitely "legally in the right" (they wouldn't be able to file if they weren't at least, technically) -there's sort of a flavor of misuse and strongarming in the case of the RIAA.

In the case of Eros, I don't think it's the same, and except for a few people who want to draw 'exact parallels' - I don't think most of the public will see it that way.

We're also talking about a situation where the RIAA essentially released their wares in an unpalatable format. Buy 12 songs for a relatively high price, in an inconvenient format.

Piracy "filled a vacuum" and "filled a need" in the case of the RIAA and the music labels. The reason piracy flourished is, in part, because people wanted items a-la-carte and wanted to play them on portable devices. Pirates copied the items, and gave them out for free.

I would say, that since iTunes, the level of legitimate paid-for downloads versus pirated downloads has at least become "more towards level". Needs were filled.

In the case of SL piracy, I don't think there's a great vacuum needing to be filled where people can't afford US$2.00 shirts so they need them to be copied. Most people who copy end up reselling anyhow, unless they for some reason have a direct vendetta or reason to cause harm to the creator - in which case they'll distribute them for free.

It isnt a matter of piracy developing in a vacuum of need or even public want.

It's people doing it to intercept a creator's revenue stream (or even maybe just 'notoriety' stream.)

I suppose we may enter an age of hoardes of pirates "liberating" content to rage against "some guy in a suburb making an extra 15 grand a year off of SL", but for some reason I feel that that doesn't quite have the rebellious impetus that sticking it to the RIAA does.

It just isn't the same environment. It's not an identical situation.

So many people keep trying to compare SL to "web pages" and calling it "the next internet".

SL isn't a "web page", no matter how many times Linden Lab wants to draw that corollary.

SL is SL. It's something new, it's different than a web page.

On the same note, Eros or Munchflower are not the RIAA, and the infringement going on is not the mass distribution of free MP3s.

On any note, I don't see any of this going that far down any slippery slope; as once this gets too bad, you can be assured of one thing:

there will be far fewer content creators in SL.

Yes, there will always be some folks who will continue to create. But this sort of 'release valve' will operate. The content creation scene in SL will decline to a low enough level due to people giving up, far before it gets big enough to reach the level of "Big Content vs the people."

-------------

(P.S., on another note, an interesting difference between copied items on SL and copied music: When you listen to music, even if it's pirated, you know who created it. The attribution is inherent. In SL, there's no such thing. If you pirate a Bruce Springsteen song, you know it's still a Bruce Springsteen song. If someone copies a pair of pants I made, they have no idea the person selling it is not the original creator.

That, I think, is part of what makes it more painful for content creators - that it's NOT just their money that's being stolen - and honestly the money is less important, to me.

This is also why the argument of, 'Well, piracy has actually HELPED some music labels and some software companies!' doesn't work in SL. It honestly could be said that the popularity of Photoshop could, maybe, as a stretch, be partially attributed to its widespread piracy. But everyone who uses it, even if it's pirated, still knows its "Adobe Photoshop".

I've had the same comments come at me about SL piracy -- "It HELPED the software companies/record companies - how do you know it won't actually help you or make your stuff more popular?"

Because SL piracy also strips the creator of accreditation. It replaces that credit with whoever created the rip or copy.

Nothing quite feels as bad as seeing an item you spent months working on, in world, being used or worn by someone else who is fully convinced that someone who pressed a button is the actual creator.

Pride and accreditation is being hijacked. And I think that's a big part of it. And I do think it makes it more 'personal' and more human. And I do think that a lot could be done in the realm of *accreditation* and *identification* that sticks to an item, even in spite of the non-viability or failures of a DRM *control* system.

There are things that have not been tried, there are other answers and other angles out there. I think it is far too early to declare it all a loss and throw the baby out with the bathwater.)

FlipperPA Peregrine

Michi!

Very well said, and welcome - good to see you here!

Hugs,

-Flip