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.