Monday, September 21, 2009

Sex Bed generates Class Action Claim

Eros LLC (the company owned and operated by Kevin Alderman/Stroker Serpentine in SL) and Shannon Grei have filed a class action complaint against Linden Lab with respect to a range of claims in trade mark and copyright. The Plaintiffs allege that Linden Lab has 'directly and secondarily violated the intellectual property rights of Plaintiffs and other Second Life Proprietors.' The essence of the claim is that Linden directly and secondarily infringes the trade marks of Eros, by using Eros's marks to sell infringing virtual goods in Second Life, and directly and secondarily violates the copyright of Grei by reproducing and displaying her copyright works within Second Life and by materially contributing to and supervising (sanctioning and benefitting from) the infringing conduct of others with Second Life.
The complaint emphasises the claim that Linden benefits from the infringing conduct by deriving revenue from the sale, use and display of infringing items.
The claim reflects the frustration of Kevin Alderman (or is it Stroker Serpentine?) that he has previously been compelled to take parties to court over infringements with respect to his SexGen bed and other intellectual property with little practical consequences. The claim alleges that there is much more that Linden could do to prevent the extensive trade in infringing items. Specifically, it claims that although infringement is prohibited by the Second Life Terms of Service and may be the subject of a claim under the Digital Millennium Copyright Act (DMCA) Linden does little to supervise or enforce any DMCA claims. Further, the DRM protection running in Second Life 'is easily circumvented and hopelessly ineffective'. Interestingly, the claim explains how those wishing to avoid DMCA liability can simply avoid compliance by creating a new account and loading the content under their new account name. Further, many content creators in SL are reluctant to bring a DMCA claim as it requires disclosure of their RL identity. The claim draws the analogy of a flea market where pirated goods are openly and cheaply available. The claim also forcefully makes the point that due to the small value of transactions in Second Life in terms of RL currency the cost of bringing individual legal actions is prohibitive, allowing infringement to continue unabated.
The claim makes interesting reading for those interested in the technical and legal operation of Second Life and provides an interesting argument regarding the limitations of the DMCA safe harbour scheme. It discusses the practical application of CopyBot and other copying programs.
See the coverage at Massively for more commentary.

Tuesday, September 1, 2009

Gov 2.0 Roadshow: visit to Adelaide

Last night I attended the Adelaide leg of the Government 2.0 Taskforce Roadshow, intended to provide the public with the opportunity to comment on the Issues Paper and the work of the Gov 2.0 Taskforce. It was chaired by Nicholas Gruen, and the other Taskforce members in attendance were Alan Noble and Glenn Archer. Nicholas began by outlining his vision for the work of the Taskforce including: changing the default position in government to access to data being open unless it is determined for good reason that it should be closed, rather than the current 'closed' default position, and the encouragement of digital engagement with government through Web 2.0 techniques and the the opportunities and challenges in doing this.
The process aims to produce a Report by mid-November but this is currently looking unlikely, due to workload and time taken with the process thus far. The Taskforce has until 31 December to report.
Much of the discussion revolved around issues related to authentication and identity, apparently not an issue raised at any of the other Roadshow meetings. There was some debate regarding what aspects of identity and authentication were in fact Web 2.0 issues.
I was most impressed by Nicholas' discussion of 'engineering for serendipity'. Acknowledging that perfect co-operation between all arms of government was unlikely (at least in our lifetime) it was important to facilitate and design mechanisms that would at least encourage and support those willing and able to engage with technology to increase the potential for such interaction.
Predictably there was also a little cheering for the wonders of Creative Commons and its promise of freeing up material for innovation. (Here insert a little bit of standard lawyer bashing to the amusement of the audience). Again the mantra is free the information and innovation will follow. There was no time to get into a debate about ownership, access and use, and the differences between the three. However, we will need to be careful that these are identified and separated in any work following on from the report of the Taskforce, when it is produced.
The conclusions of the meeting were that there is a clear need for cultural change, due to the resistence both institutional and personal by many to the adoption of new technologies. This is particularly true in the public sector.
Finally, asked what academic input would be sought be the Taskforce Nicholas somewhat disappointingly said that academics do not appear to be on top of the game in this area (perhaps due the institutional restraints referred to above? and the need to publish in arcane journals??) Rather 'quasi-academics' (his term not mine) like Clay Shirky were doing all of the interesting work. Perhaps the academics need a change of culture too?
So apart from feeling a litttle wounded on account of being both a lawyer and an academic, it was an interesting experience. We still have a lot of work to do, but it was good to see that the members of the Taskforce were well across the issues and quite passionate about their task.