Second Life Dragged Into Legal Dispute Over Copyright Of Virtual Horses And Virtual Bunnies

from the virtual-madness dept

Way back in 2003, we warned that Second Life's copyright policy was going to be trouble. While many people celebrated the fact that Second Life had announced that participants would "own" the copyright on any works they created within the game, we feared that this would bring real world legal disputes into a virtual world that didn't make much sense -- and in retrospect many of the problems we expected have come true, though it's been mitigated by the fact that Second Life has lost a lot of its popularity over the past few years.

That said, Eric Goldman has the details on a recent bizarre legal dispute, which is summarized by the judge in the case as follows: "The gist of the copyright dispute between the parties is whether Plaintiff's virtual horses infringe on copyrights associated with Defendant's virtual bunnies." Yeah, so you know you're in for a treat. The details are that one company, Ozimals, makes "breedable" animals within Second Life, and believed that a competing company, Amaretto Ranch Breedables, was infringing on its copyrights. Ozimals insists that it's not claiming copyright on all breedable animals, but it does believe Amaretto directly copied much of its expression. After some back and forth between the companies, Amaretto went to court to try to get a restraining order, preventing Second Life from taking down their animals via a DMCA notice from Ozimals. The court agreed, and has barred Second Life from taking down the content.

Once you get past the fact that we're arguing over copyright on virtual animals, there are a variety of other issues here, including the question of why Second Life is barred from removing this content. Second Life wasn't a party to the lawsuit. Amaretto sued Ozimals, so at best, it seems like the court should only have issued an injunction against Ozimals from filing a DMCA takedown, but Second Life should be free to do whatever it wants. As Goldman notes:
The order binding Second Life also raises some troubling First Amendment issues. Second Life has the First Amendment rights to decide what to publish and what not to publish. If Second Life decides, for whatever reason, that it wishes to kibosh Amaretto's content, it seems improper for a court to force it to do otherwise. This point is completely unaddressed in the court's opinion because Second Life wasn't a litigant and couldn't advocate for its own interests. I could see why Second Life would basically agree to something analogous to an interpleader (effectively turning over the user-vs.-user copyright dispute to the judge and agreeing to abide by the judge's instructions). However, in a quick perusal of PACER, I didn't see anything that looked like Second Life consented to be bound by the proceedings. Were Second Life to fight this order on First Amendment grounds, I think it would have some mojo in that challenge.
That said, it is interesting to see a court step in and go so strongly against the filer of a DMCA takedown notice. It's quite rare to see anyone get in trouble for filing a bogus DMCA notice, that it's nice to see at least some courts recognize this could be a problem, even if the court then directed its injunction at the wrong party.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Jay (profile), Jan 6th, 2011 @ 5:59am

    I know an easy way to get rid of the bunnies.

    Holy Hand Grenade. Works every time.

     

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  2.  
    identicon
    Anonymous Coward, Jan 6th, 2011 @ 6:05am

    Re:

    Why you don't like bunnies? why?

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Jan 6th, 2011 @ 6:17am

    could it be that the very reason the court imposed on second life instead of the actual DMCA filer is to try to avoid setting a precedent of ruling against DMCA filers?

    if the judge were to impose a restriction on the DMCA filer, it could impeded future filers or weaken the DMCA, just a little. so the judge avoided that.

    what do we know about the judge's stance on IP or any connections to the content industry?

     

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  4.  
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    The eejit (profile), Jan 6th, 2011 @ 6:19am

    Re: Re:

    Because they're not from Antioch. :p

     

    reply to this | link to this | view in thread ]

  5.  
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    btrussell (profile), Jan 6th, 2011 @ 6:32am

    Imaginary property at its' finest.
    A money mill for lawyers and the "justice" system.

     

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  6.  
    identicon
    Yogi, Jan 6th, 2011 @ 6:38am

    Re:

    You mean, of course, a Virtual Holy Hand Grenade. Hopefully, theyare still in the public domain, or else we're doomed.

     

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  7.  
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    cgt (profile), Jan 6th, 2011 @ 6:52am

    Second Life... does that thing still exist?

     

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  8.  
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    FlaCracker66, Jan 6th, 2011 @ 7:12am

    VIrtual bunnies

    So if a virtual rabbit dies .. in a virtual community .. who is pregnant?

     

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  9.  
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    btrussell (profile), Jan 6th, 2011 @ 7:26am

    Re: VIrtual bunnies

    Lady Goo-Goo?

     

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  10.  
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    John Dandison (profile), Jan 6th, 2011 @ 8:55am

    Re:

    Ahhhh-le-lu-ia!

     

    reply to this | link to this | view in thread ]

  11.  
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    Will Sizemore (profile), Jan 6th, 2011 @ 9:28am

    Second Life

    I love when Techdirt covers Second Life and other "Virtual Worlds."

    I build in Second Life (SL). I have even scripted a little. I do it as a form of entertainment. I've been told the things I make can make money, but I've been hesitant to do so. I make Star Trek-inspired things for a Star Trek sim and if I earned money doing so I might end up pissing off Paramount. Half of everything you see in Second Life is copied from something in the real world, or at least from entertainment or cultural artifacts present in the real world. Its part of SL's charm.

    I've never been seen or heard of these breeding virtual animals but I hope they breed virtually, and not quite so graphically.

    After reading the filed papers, I actually agree with Amaretto's requests. I personally think that Ozimals engaged in some shady business practices here, and unless Amaretto Ranch Breedables improperly used code that was improperly attained from Ozimals or perhaps a contracted scripter, then Ozimals should be penalized, not Second Life.

     

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  12.  
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    Will Sizemore (profile), Jan 6th, 2011 @ 9:35am

    Re: Second Life

    Oh, and having been a Second Life 'resident' for 3 years, I know personally how deceitful and scheming people get with the anonymity of their avatars and there are people in Second Life who are FAR more devious and prone to conspiracies than even found in the US Government.

    Ozimals charges WAY too much for their products, and a quick search of the SL Marketplace resulted in absolutely nothing from Amaretto Ranch Breedables, but quite a bit from Ozimals. All the breedable horse results are far less organized and less advertised than Ozimals and in the absense of Amaretto's presence, I would not put it past the residents of SL to have done this for the intent to crush the competition.

    That being said, how is this practice any different from the real world?

     

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  13.  
    identicon
    Anonymous Coward, Jan 6th, 2011 @ 10:14am

    I'm not sure why there is such disdain for copyright "virtual" creations.

    Why is this any different than copyright in an animated bunny, or a drawing, or some other video game character?

     

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  14.  
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    Prokofy Neva, Jan 6th, 2011 @ 10:24am

    $7Billion Virtual Goods Market

    Yes, and way back we warned that YOU were trouble because you defy what is national and international law, which is copyright.

    Unlike your friend Google with YouTube and any number of other platforms with social media that can't pay their bills and have to keep getting big infusions of VC cash (Facebook), Second Life turns a profit, and makes money for its users, most importantly (the other platforms only take money or pay a pittance in Adsense).

    That makes you furious at Techdirt, because it goes against your religion.

    Too bad. DRM is here to stay; so are digital commodities that require payment and are behind pay walls. Deal with it.

    Virtual goods are a $7 billion business. $7 billion! And those goods are sold on proprietary platforms, in walled gardens, with proprietary code. And God bless them for bucking the tide of the technocommunist sandbox Internet of Tim Berners-Lee and all his descendents unto Web 2.0. There is hope now for Web 3.0.

     

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  15.  
    identicon
    Prokofy Neva, Jan 6th, 2011 @ 10:30am

    First Amendment Invocation is Specious Edge-Casing

    Goldman's invocation of the First Amendment is specious and edge-casey.

    The First Amendment as you know doesn't trump freedom of association and...the First Amendment.

    As the publisher, Linden Lab has the right to publish or not publish content. It can decide it likes Ozimal better than Amaretto -- it fetes Ozimal mightily and gives it a huge leg up with special privileges and advertising on the front page and even in spam emails to all premium accounts.

    So even if the court decided in Amaretto's favour, LL could ignore the decision. Indeed, mindful of the precedent that this could create for a First Amendment dimension, the judge would likely not set it up that way and might ultimately just seek a settlement out of court (as has occurred in every other content theft case in SL).

    But again, it's specious -- and an old geek trick that we saw with Net Neutrality, too -- to convert what is essentially a PROPERTY issue and a COPYRIGHT issue into a "free speech" issue.

    On the other hand, LL is committed to upholding copyright. If it could be reliably shown that Amaretto had copied Ozimal, it would throw out Amaretto. But if the shoe were on the other paw or hoof, it might simply do nothing. It often responds that way.

     

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  16.  
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    Will Sizemore (profile), Jan 6th, 2011 @ 11:05am

    Re: First Amendment Invocation is Specious Edge-Casing

    I hope you don't mean ME. If I misrepresented myself and my position, please let me clarify.

    I love Techdirt. Second Life articles are my absolute favorite because the topic intrigues me.

    I would agree with you that it should be the Lindens who determine which content to publish, and not the courts, but for for The Lindens to do that with no possible recourse for affected parties could severely diminish the freedoms that a large portion of SL Residents have enjoyed for years.

    The more Linden Dollars people purchase in order to buy breeding animals and their feed, the more US Dollars Linden makes. I'm all for that. In fact, the only thing I wish Linden could do better than they already do, is cut down on lag, but do so while increasing the amount of prims and scripts allowable in a certain area by a factor of ten or more.

     

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  17.  
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    btr1701 (profile), Jan 6th, 2011 @ 11:34am

    Re: First Amendment Invocation is Specious Edge-Casing

    > Goldman's invocation of the First Amendment
    > is specious and edge-casey.

    What the hell is "edge-casey"?

     

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  18.  
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    mikez (profile), Jan 6th, 2011 @ 12:10pm

    second life still exists?

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Random9, Jan 6th, 2011 @ 1:14pm

    beware, Prokofy Neva is a known troll in the world of SL.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Goldstar25, Jan 6th, 2011 @ 2:19pm

    Hmmm, not so much....

    Prok does so love the word "fete", doesn't she?

    @ Will - there's a lot more talk of the people behind amaretto being shady characters than there is about ozimals, by a long shot. Just google "amaretto cheats" As far as marketplace goes, amaretto refused to list it's products on there because they didn't want to get the hit of LL taking their cut, they've said as much themselves. I've owned both products and their prices are literally within 5 lindens or less for comparable items, and overall it is much more expensive to raise horses than bunnies because of the extras (salt licks healing kits etc) you have to buy with amaretto in order to be viable as a breeder.

     

    reply to this | link to this | view in thread ]

  21.  
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    truthtold (profile), Jan 6th, 2011 @ 3:20pm

    Re: Hmmm, not so much....

    the website you are looking for is http://amarettocheats.wordpress.com/

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    Will Sizemore (profile), Jan 6th, 2011 @ 5:41pm

    @ Goldstar25 - Thank you for that. I was waiting to get home to log in and see for myself. Does Ozimals allow you to use feed and such from other vendors? That Wordpress site you referred me to is also very one-sided. As a former Intelligence Analyst and a decent researcher I can't form an opinion as to whom is guilty of exactly what.

    I probably won't buy anything from either company because I don't want to raise animals, not because I don't feel like I can trust either. DCS2 is more my speed and I haven't seen any problems in Dimentox's activities.

    Setting your prices at just under your competition's prices and then refusing to pay for advertising in a particular market to recoup isn't illegal, nor is it unfair.

    What happens to all this virtual property, land, and money when Linden Research decides to halt operations?

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Aerilus, Jan 6th, 2011 @ 8:43pm

    Now if i made a second virtual work inside of second life and made a market place in it (its theoretically possible) then some one sued someone else because of copyright infringement would i or would i not get laughed out of court? I just find this whole thing very amusing and it come to my attention just because you can make money doing something doesn't mean it deserves government protection. but that might be sacrilege or something

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Lazo, Mar 2nd, 2011 @ 4:35am

    Breedables...

    We'll see what happens when those damned horses lag the grid so badly they make certain sims unusable.. surly LL will move to protect their assets by removing problematic code regardless of court opinion.

    Oh, yeah, shut up Prok, you conspiracy addled goon......

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    aldestrawk (profile), May 4th, 2011 @ 8:51am

    Re: VIrtual bunnies

    I recall explaining to my, German, girlfriend the meaning of the lyric from the Aerosmith song, Sweet Emotion:
    "...can't catch me 'cause the rabbit done died.."
    At that time, pregnancy tests that included rabbits (or any live animals) had long been discontinued. What is not commonly known is the rabbit died regardless of outcome of the pregnancy test.
    http://www.straightdope.com/columns/read/1239/in-old-time-pregnancy-tests-did-the-rabbit-real ly-die

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    aldestrawk (profile), May 4th, 2011 @ 8:57am

    Re:

    Second Life has definitely gone downhill if it is resorting to "farmville" tactics where you have to constantly nurture your virtual life or it will die. Given that, it will definitely continue to exist because of the easily addicted and those virtually deluded individuals who are horrified at the idea of letting their virtual bunnies or horses starve to death.

     

    reply to this | link to this | view in thread ]

  27.  
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    aldestrawk (profile), May 4th, 2011 @ 9:46am

    Re:

    I think that raises a good point. Apart from the issue of whether 512(f) applies when there is no actual takedown, I think that Ozimals actually believes there is copyright infringement going on and shouldn't be penalized for filing a DMCA takedown. I do think they are confused, and try to make some distinction between "idea" and "concept". They are claiming that Amaretto ranch copied their concepts and this is covered under copyright law.
    The difference between expression and idea becomes less clear when the medium is digital in nature. Art created via CGI is generated from scripts and data. A virtual bunny is created using Linden Labs scripting language (LSL). The crux of the issue is whether the details that Ozimals say were copied, are copyrightable as expression or these "concepts" are really just ideas. It looks to me like they are just ideas. So, either Ozimals is being disingenuous or they should fire their copyright attorney. My point is that the difference between expression and idea may not always be clear.
    At any rate they would have done much better had they patented their implementation of breedable virtual animals. There are a couple of reasons that might not work. Firstly, The script would be specific to LSL and since that is only useful within Second Life doesn't Linden Labs have some rights involving any patents? Secondly, I suspect someone researcher, somewhere, in synthetic biology has already dealt with virtual reproduction.

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    aldestrawk (profile), May 4th, 2011 @ 11:28am

    Re: First Amendment Invocation is Specious Edge-Casing

    I am having trouble understanding your arguments.

    "The First Amendment as you know doesn't trump freedom of association and...the First Amendment."
    What does this mean? Freedom of assembly is part of the first amendment. Is association somehow different?

    "As the publisher, Linden Lab has the right to publish or not publish content."
    Isn't that right a first amendment right?

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    aldestrawk (profile), May 4th, 2011 @ 11:40am

    Re: $7Billion Virtual Goods Market

    That's quite a rant! For the life of me though, I can't figure out your objection to Tim Berners-Lee. He does say that internet technology should be based on standards (i.e. protocols) that are royalty-free. This is important for such standards to avoid fragmentation of the internet. That idea in no way precludes the existence of technology patents or copyrighted material being protected as content on the internet.

     

    reply to this | link to this | view in thread ]


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