Forum Link: Original Post

Event With EFF's Ren Bucholz and Robin Linden
Topic: Copyright, DMCA, IP Rights, and how they effect Second Life and simular technologies

Bhodi Silverman: WITHOUT FURTHER ADO - I GIVE YOU Bucholz of The Electronic Frontier Foundation
Ren Galatea: Thanks very much for having me here today. Thanks especially to Bhodi and VERTU for arranging everything.
Ren Galatea: I've never seen a space quite like this - I am very impressed. You all know this already, but Second Life is a stark contrast to most other games.
Ren Galatea: Its architecture empowers its inhabitants, and you've used that freedom to build a rich environment.
Ren Galatea: I mention this not only because it makes me happy, but also because it's a theme that I'd like to talk about today.
Ren Galatea: I'm going to focus on the role of disruptive information technology in the last 100 years, but I think that what you're doing here is very relevant and should be kept in mind - when the monopoly on creative/expressive apparatuses is broken, interesting
Ren Galatea: things start to happen.
Ren Galatea: My First Life name is Ren Bucholz and I work for the Electronic Frontier Foundation, a non-profit lawfirm concerned with the intersection of technology and civil liberties.
Ren Galatea: We don't have an SL office yet, so I apologize if I stick out like a sore thumb right now.
Ren Galatea: Or, like a naked thumb
Ren Galatea: We do, however, have an office in California, and staffers in other states and countries at any given moment.
Ren Galatea: We work on traditional civil liberties issues like privacy, free speech, surveillance and the like, but we've also become increasingly involved in intellectual property (IP) law.
Ren Galatea: no problem By the way, please feel free to IM Bhodi with questions for me - I'd really like to answer any that you have.
Ren Galatea: As IP - particularly copyright - becomes more powerful, we've seen it used to squelch innovation, censor speech and frustrate the flow of information.
Ren Galatea: Hmm - that didn't come out right. I was saying that we are increasingly working on intellectual property issues because IP is often used for ill purposes.
Ren Galatea: This isn't a new tactic, but it has always failed in the past.
Ren Galatea: Today, however, we are embroiled in many close fights with copyright holders who want to control technology and its users.
Ren Galatea: To understand these fights better, I'd like to put them in context.
Ren Galatea: This scenario has played out many times in the last century:
Ren Galatea: a disruptive information technology becomes widely used, an affected industry claims that the technology will result in the End of the World as We Know It,
Ren Galatea: and that industry proceeds to attack the new technology in court, in Congress and in public.
Ren Galatea: Every new information technology of the last one hundred years - piano rolls, motion pictures, radio, television, cable TV, satellite TV, the VCR, the Internet, etc. -
Ren Galatea: has been met with this kind of resistance.
Ren Galatea: In each case, the old guard was rebuked.
Ren Galatea: And in each case, the complaining industry and the public were better off than before.
Ren Galatea: The archetypical example is the VCR.
Ren Galatea: In 1975 Sony released the Betamax, the first commercially successful home video recorder.
Ren Galatea: This amazing new technology gave consumers the ability to #time shift# broadcast material to fit their schedules.
Ren Galatea: It also sparked a booming video rental market and the machines sold like hotcakes.
Ren Galatea: The motion picture industry, however, was not impressed.
Ren Galatea: Jack Valenti, their president and one of the most effective lobbyists of all time, told Congress that
Ren Galatea: "the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone."
Ren Galatea: In other words, the VCR was going to end the movie industry.
Ren Galatea: Disney and Universal City Studios filed suit against Sony in 1976, claiming that it was engaged in #contributory copyright infringement.#
Ren Galatea: In other words, they thought that manufacturing a device that people *may* use to infringe copyright shold be illegal.
Ren Galatea: Further, they held out their own technological solutions as reasonable alternatives.
Ren Galatea: Sure, they weren't very good for consumers, but that wasn't Hollywood's aim in the first place.
Ren Galatea: For the copyright holders, controlling the technology was of primary importance.
Ren Galatea: The Supreme Court decided in favor of Sony in 1984.
Ren Galatea: The Court held that manufacturers of a device with significant non-infringing uses could not be held liable for contributory infringement.
Ren Galatea: That's a lot of big lawyer-sounding words.
Ren Galatea: Basically, they said "this is a multipurpose technology, get over it."
Ren Galatea: This meant that though the machine *could* be used to infringe copyright, the movie industry wasn't going to be given control over it.
Ren Galatea: Of course, the following decades proved Valenti more than wrong.
Ren Galatea: By 1992, revenue from videocassette sales and rentals made up the majority of Hollywood's earnings - it even exceeded the money generated by the box office.
Ren Galatea: In other words, less control over technology created a better outcome for both content creators and the public.
Ren Galatea: The principle outlined in that case is now known as "the Betamax Doctrine," and it is part of why the last 20 years have seen such unprecedented growth in information technology
Ren Galatea: If Sony had lost, and anything that was *capable* of making a copy had to be authorized by a movie studio or record label, we'd live in a very different world.
Ren Galatea: This is remarkable because that fight is upon us again today, and it has happened many times in other contexts in the last 100 years.
Ren Galatea: We could talk about other historical examples like those I mentioned above, or we could move on to more current stuff. Are there any preferences?
Alana Monde: I'd like a view of what we are up against currently
Ren Galatea: Great!
Ace Cassidy: I think we know the history... let's talk about what's happening today
Nala Galatea: I'd personally want to hear what is current
Beryl Greenacre: me, too, current stuff is most interesting to me
Fallingwater Cellardoor: me too
Malana Spencer is offline
Eddie Escher: yup
Ren Galatea: Fantastic - we'll talk about current stuff.
Ren Galatea: So, I mentioned that EFF is a law firm
Ren Galatea: We take cases where we think that a principle is in danger and we believe that we can make a difference.
Ren Galatea: I'm sure that you're all aware of Napster?
Selador Cellardoor: Yep
Oz Spade: /nod
Nala Galatea nods
Eddie Pollack: o yeah
Ren Galatea: Well, the recording industry went after Napster with a lot of the same arguments thatHollywood used in the 1980s
Ren Galatea: They said, "you are making a product that is primarily designed to contribute to copyright infringement."
Ren Galatea: Further, Napster had the right and ability to control its network
Ren Galatea: A judge looked at that situation and decided that Napster was not like a VCR,a nd that it should be shut down.
Ren Galatea: So - why wasn't it like a VCR?
Ren Galatea: For one, the company had the power to control peoples' uses. Sony simply sold a box to a consumer and then had nothing furhter to do with it
Ren Galatea: So, after Napster was shut down, a new crop of P2P applications emerged that looked a lot more like a VCR
Ren Galatea: Kazaa, Morpheus, iMesh, etc. are all decentralized services, and their authors have no control over what goes on over those networks
Ren Galatea: When the recording industry attacked this new wave, they restated many of the MPAA's wishes from the Betamax case. They essentially said - you should have to ask us before making anything that's capable of copying music
Ren Galatea: That's why EFF is representing Morpheus in this matter
Ren Galatea: If the RIAA has its way, then all multipurpose technology is potentially at risk
Ren Galatea: Because today, almost all of our technology is capable of making those kinds of copies
Ren Galatea: We also believe that P2P is socially beneficial and has the potential to make the world a better palce for artists and the public
Ren Galatea: So, the neat thing is that so far we are winning
Ren Galatea: We won our case at the district court level and recently argued the appeal here in California
Zeppi Schlegel: :-)
Ren Galatea: When that decision is issued, we'll have a sense of whether the principles outlined in BetaMax will continue to protect innovation
Ren Galatea: I also wanted to go back to something I started talking about at the beginning - the nature of empowering technologies and why we think they're important
Ren Galatea: P2P, SL, open source software, the Web, are all examples of technology that let people contribute to the larger culture in ways that were previously unimaginable
Ren Galatea: Many of these technologies are undergirded by a sense that openness is important, and that centralized, corporate control of the network are not healthy
Ren Galatea: That's why I wanted to mention that I think SL is really neat - I think it's a good example of what people can do if given the tools to create
Ren Galatea: By the way, I've just been joined by a colleague who may be speaking about International IP issues next week - Gwen Hinze
Ren Galatea: So - are there any questions at this point?
Nala Galatea grins
Bhodi Silverman: Zeppi Schlegel: Trading in "virtual goods" (whatever the marketplace) is of particular interest to me. Has anyone at EFF taken any interest in say the Black Snow case with Mythic Entertainment? Or the various cases in Asia?
Ren Galatea: We've talked about it a little, and it'a very complicated thing to think through. Basically, the trouble is that your interactions in a game world are governedlargely by contract law
Ren Galatea: We've talked about it a little, and it'a very complicated thing to think through. Basically, the trouble is that your interactions in a game world are governedlargely by contract law
Zeppi Schlegel: *nods*
Ren Galatea: If your terms of service are bad, then there's not much that you can do. However, even good terms of service can't do much in some cases.
Ren Galatea: For instance, SL has a great ToS that talks about players having the rights to their own property. However, how would those rights be enforced if SL went out of business, became evil, accidently removed your items?
Ren Galatea: I'm not saying that those are likely, but that it's not as simple as saying "you now haveproperty rights."
Ren Galatea: Does that address the question?
Zeppi Schlegel: Certainly. I'm happy to know you folks have had a look.
Bhodi Silverman: Alana Monde: Could NApster have saved themselves by touting 'other' non enfringing uses from the beginning..or was the killing issue their control?
You: Accidental removal has happened
Ren Galatea: Napster's architecture made it very difficult to argue for the same kind of protection that Sony received in BetaMax
Alana Monde: /nod
Ren Galatea: Even if they had a lot of other non-infringing uses, they still would have had trouble with the part of vicarious liability doctrine that talks about "right and ability to control" the uses of its system because of how they built it.
Alana Monde: /nod thank you
Ren Galatea: No problem
Bhodi Silverman: Nala Galatea: I would like to know how you would like to see these networks policed, if at all. Since the identity of those who illegally file-share can be determined, do we have someone watching always, does it just become a free-for-all, or is there mi
Bhodi Silverman: middle ground.
Ren Galatea: Our position is to focus on making many of those uses legal instead of trying to kill the technology. For instance, the largest criticism of P2P nets right now is that they facilitate copyright infringement.
Ren Galatea: If we could find a way to license the content on those networks - to pay artists, in other words - then there is no more infringement.
Ren Galatea: This is how radio stations work. DJs don't have to pay for each individual song each time they play it - instead, there is a blanket license that covers each station and thuse the entire industry
Bhodi Silverman: Ace Cassidy: I know that the RIAA has brought suit against some individuals using P2P music sharing... what's the status of these cases?
Ren Galatea: So - the short answer is that we sould like to remove reasons to police the Well, there are thousands
Ren Galatea: The RIAA has filed over 2,5000 individual suits against P2P users
Zeppi Schlegel: Boo!
Ace Cassidy: egads
Ren Galatea: In most cases, the people simply settle for a few thousand dollars rather than pay the cost of a legal battle
Ren Galatea: However, we have seen some progress in forcing the RIAA to follow the same procedural safeguards as every other industry
Ren Galatea: At the beginning, about a year ago, the RIAA was was using a provision of the Digital Millennium Copyright Act to get peoples' identities without a judge having to OK it first
Ren Galatea: They filed all of theirsubpoenas in one court, even though they were targeting people across the nation
Ren Galatea: In December of last year, a court held that they could not use the DMCA to cut corners in their suits. Now, they have to file what are called "john Doe" lawsuits
Ren Galatea: Where a judge makes a decision, based on the evidence, about whether the person's identity must be divulged.
Ren Galatea: The other thing that's happening is that they have filed single suits seeking the identities of multiple parties
Ren Galatea: However, they've also been reprimanded for doing that and now have to file separate suits.
Ren Galatea: So - the battle continues, but they now have to play by more of the rules.
Ren Galatea: And, a year later, no artists have been paid out of the money they've won and it's not clear that this campaign has had any real effect
Bhodi Silverman: I hate to dot his folks, because we're all learning so much, but it's time to move on to Robin Linden and the DMCA in SL.
Ren Galatea: Thanks so much for having us!
Zeppi Schlegel: Thanks Ren!
Oz Spade: Great talk ren
Robin Linden: Thanks Ren!
You: Thanks!
Alana Monde: Thanks so much for coming Ren!!
Eddie Escher: thank you ren, nice one
James Miller: Wonderful
Nala Galatea: Thanks Ren. Wonderful to hear you. Keep up the good work.
Bhodi Silverman: Thank you, Ren, for such a great talk! We're all looking forward to your next talk on Monday!
Ace Cassidy: thank you SO much, Ren... this has been very imformative
Ren Galatea: I really appreciate the chance to talk to y'all - have a great weekend!
Bhodi Silverman: Robin, sorry, I leaked.
Bhodi Silverman: That was an old question.
Robin Linden: Ahh, ok
Robin Linden: Hi everybody
Alana Monde: *wave*
LaughsaLot Onizuka: can some one help me i cant move
Chibi Chang: Yay!
Nala Galatea: Woohoo
Robin Linden: Bhodi asked me to come today to talk with you about the DMCA
Robin Linden: I really can't comment on the issue of its value in fair use cases
Robin Linden: Not being an attorney...
Robin Linden: Where it has most affected us, and some of you in Second Life
Robin Linden: is in its provision for managing copyright complaints
Robin Linden: The DMCA has a very clear purpose in protecting host and ISPs from violations of copyrights made by users of the network
Robin Linden: where the host or ISP serves as a vehicle but isn't actually creating the offending content
Robin Linden: Because SL is classified as an online service, we fall into that category
Robin Linden: That's why if you have complained to us that someone has violated your copyright in SL by claiming they made a script or a texture or an object that yyou believe is yours
Robin Linden: we ask you to follow the DMCA process
Robin Linden: Our role then becomes one of making sure you have the information and paperwork you need to file the claim
Robin Linden: we also are required to remove the object or script in question until there is some resolution
Robin Linden: interestingly there is also a process where if the person who complains doesn't actually follow through, the second person can file papers allowing us to reinstate the disputed object
Robin Linden: beyond that, I'm happy to answer any questions you have
Bhodi Silverman: Robin, I'd like to start with a question - if there is no process to reinstate objects if there is no follow through, is there any way LL can prevent "DMCA griefing"?
Bhodi Silverman: Or any penalty for filing a false DMCA report?
Robin Linden: the DMCA process is pretty intense, so what we've seen so far is that people think twice about actually filing a claim, although there have been threats
Robin Linden: we don't remove the object unless there is actually a claim filed
Bhodi Silverman: Ace Cassidy: does this mean that if I think someone has infringed my copyright, we BOTH lose access to the object/texture/script/etc in question until resolution?
Robin Linden: yes
Robin Linden: which is why I think people think twice before filing a claim
Bhodi Silverman: Zeppi Schlegel: Q: Have there been many claims since LL changed the license?
Robin Linden: there have been two disputes, but no claims
Bhodi Silverman: Are there any more questions, folks? We'll never have a better chance to ask them!
Nala Galatea: Hold on...I'm thinking....
Bhodi Silverman: I'll ask one while we wait - Robin, if a DMCA claim is file and proven false, is there any recourse for the falslely accused person to claim damaged against the accuser?
Robin Linden: good question...I'm afraid I don't know the answer
Robin Linden: Ren - do you have any idea?
Robin Linden: one thing that does come up frequently is the confusion between copyright and trademarks
Ren Galatea: Yes, if there is misrepresentation and it can be proven
Ren Galatea: it's in section 512(f) of the DMCA
Robin Linden: well there you have it
Ren Galatea: However, that might involve hiring a lawyer
Bhodi Silverman: LOL. And what is section 512(f) of the DMCA
Ren Galatea: Section 512 generally addresses "notice and takedown" of copyrighted material
Ren Galatea: Section (c) is what Robin was referring to earlier
Ren Galatea: it gives service rpviders a "safe harbor" from a copyright claim from either the accuser or the accused if they follow the procedures correctly
Bhodi Silverman: This is a two parter...
Bhodi Silverman: Bino Arbuckle: If an object has an offending texture, say, a soda machine with a logo similar to a name brand, is the texture removed or the object removed?
Ren Galatea: 512 (f) allows the accused to get damages from an accuser who makes a misrepresentation
Bhodi Silverman: Bino Arbuckle: If an object has an offending texture, say, a soda machine with a logo similar to a name brand, is the texture removed or the object removed?
Robin Linden: As I mentioned earlier, trademarks are handled differently than copyrights
Bhodi Silverman: oops, sorry, Ren!
You: Ah, sorry, didn't catch that
Robin Linden: The texture you're talking about is a trademark. We are obligated to remove trademarks when they are called to our attention.
Robin Linden: Our process is to replace the offending texture with a bland one and advise the creator to come up with something else.
Bhodi Silverman: Nala Galatea: I remember when SL issued the new "we can own things ingame" notice and I wondered if the DMCA was taken into account when that was issued, and if so, how?
Robin Linden: We've had the DMCA is place since the beginning, since there has been the potential for copyright infringement since the beginning. For example with music.
Robin Linden: The reason you can only upload 10 seconds worth is to try to discourage the infringement of music copyrights
Robin Linden: The announcement we made just means that now your creations are given the same copyright protection for you as the RIAA has.
Ace Cassidy: personally, I wish SL would do more to discourage music uploads... I get annoysed at laggy servers caused by boom-boxes preloading all these sounds so I can listen to music I don't care for
Bhodi Silverman: Robin, I'd like to ask for someone who isnt' here - can you tell us exactly how the sound API has been crafted to adhere to these regulations, and why they are more stringent than those placed on visual copyright infringement?
Robin Linden: As I said, we limit the sound upload to :10, which is allowed by the music industry as a 'sample'. Visual textures are not as simple
Robin Linden: If it's a trademark, we delete it as I mentioned.
Robin Linden: Copyrighted textures are not always obvious. Some art, for example, is in the public domain.
Robin Linden: If the owner of art that is not public were to complain about a copyrighted texture
Robin Linden: we would ask them to file a DMCA claim in the same way we do with SL residents
Robin Linden: Does that answer your question?
Bhodi Silverman: Well, since that person isn't here, let's hope so!~
Robin Linden: hehe
Bhodi Silverman: Another anonymous question - our creations are given copyright protection. that's creations made and copyrighted outside the world and then brought in, right?
CrystalShard Foo: :P
Bhodi Silverman: Creations in world are not the copyright of the creator?
Robin Linden: Look at it differently...most online worlds and games retain the copyright to anything made in that environment to themselves
Robin Linden: they do this in the terms of service.
Robin Linden: We changed our Terms of Service to allow you to retain the rights.
Robin Linden: In effect we just didn't reserve them to ourselves.
Robin Linden: What that means is anything you create in SL is your idea or object or design. You own the copyright
Robin Linden: If you make a chair in SL, then take the design and manufacture it in the real world and become a millionaire
Robin Linden: Linden Lab would have no right to that money
Bhodi Silverman: Bino Arbuckle: Regarding in-world content ownership, specifically scripts, if I worked on a script prior to the announcement, then worked further on it after, is the entire script considered mine?
Robin Linden: Yes
Bhodi Silverman: Bino Arbuckle: Or by extension, anything created before the announcement but modified afterwards
You: Good th hear :-)
Candie Apple: but another resident could create a script that did the same thing with no problem, correct?
Robin Linden: anything you create in SL, which you can show you created if challenged, is your Intellectual Property
Candie Apple: but someone else can copy it
Candie Apple: correct?
Robin Linden: If someone copies your script verbatim then you could challenge them
Candie Apple: how about a model?
Robin Linden: We are going to incorporate Creative Commons into the permissions system later this year, which should make it easier to manage your copyrights
Bhodi Silverman: Does anyone else see the birth of the first process patent for a function in SL being born before our eyes? grin
Bhodi Silverman: Devyn Grimm: question for Robin: In the case of copyrighted artwork being sold in-game (which happens a lot).. is it up to the artist themselves to discover it and file a complaint? The artists in question might not even play or know SL exists.
Robin Linden: that's possible
Robin Linden: I imagine that's why people are concerned about p2p copying
Robin Linden: anything else?
Bhodi Silverman: The last one.
Bhodi Silverman: (Anonymous) The DMCA has often been used to stop people from reverse-engineering products or ideas. If I see something I like in SL and I figure out how it works and "reverse engineer" it to make my own, how would the DMCA be used in that case?
Devyn Grimm: I don't think my question was answered
Robin Linden: Devyn I believe it would be up to the artist to discover the infringement and complain.
You: You could point it out to them, I'm sure, but, they would probably still have to come in and see to be able to file, no?
Robin Linden: They would need to verify the violation to file the claim
Devyn Grimm: so is there no point in filing abuse reports about infringements like that?
Robin Linden: As far as reverse engineering is concerned,
Robin Linden: I would assume the person who felt their idea was stolen would want to consult an attorney
Robin Linden: My understanding is limited to the process of filing the complaint
Ren Galatea: Devyn - that's right. The DMCA requires you to state that you have the authority of the copyright holder to make the complaint
Devyn Grimm: ok
Robin Linden: Thanks Ren
Ren Galatea: np
Lumiere Noir: I've got an odd one...
Lumiere Noir: may I?
Bhodi Silverman: Gaudeon Wu: Candie brought up something that if she hasn't Im'd already about I'd be interested in hearing about, what about copying a 3d model ? in SL there is the capability because we can see each piece and the dimensions position associated...
Bhodi Silverman: Gaudeon Wu: dimensions/position ^
Lumiere Noir: opps :-)
Robin Linden: If you copy something that someone else created point by point then you are in effect stealing their idea
Robin Linden: We
Robin Linden: are not able to provide legal advice, so if you feel
Candie Apple: wow you and colin and daniel certainly disagree on that, robin
Robin Linden: someone has stolen your idea, or look and feel of a design, then you need to talk with an attorney
Gaudeon Wu: thank you Robin
Bhodi Silverman: Okay! We're at the end!
Robin Linden: I can take Lumier's question...
Lumiere Noir: ah thanks!
Lumiere Noir: What if I made a visual tutorial based that demonstrated the Linden building interface, and used many visual mock-ups of that interface...who would the IP belong to?
Bhodi Silverman: OH - okay, Lum, go!
Lumiere Noir: I'm curious because I've already done it :-)
Eddie Escher: :-)
Eddie Escher: and very well too, lum
Robin Linden: Hehe...are you planning to sell it?
Lumiere Noir: no...not unless it's to Linden Labs :-)
Eddie Escher: :-)
Misty Rhodes: lol
Robin Linden: Again, I can't make legal judgements about ownership.
Lumiere Noir: yes...bizarre grey interface about an interface
Robin Linden: What I can say is if you've made a tutorial that shows how to use the building tools and you limit its use to SL we'd be happy to work with you on it
Lumiere Noir: Thanks Robin :-)
Bhodi Silverman: Okay, folks, that IS the end! As we said at the start, first person to get me a notecard of the whole event, starting

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