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January 23, 2007

Well done, Second Life
Posted by Patrick at 03:12 PM *

Blogger Darren Barefoot created a parody of massive multiplayer immersive sorta-VR thingy Second Life.

Second Life’s lawyers responded. In his comment section.

As you must be aware, the Copyright Act (Title 17, U.S. Code) contains provisions regarding the doctrine of “fair use” of copyrighted materials (Section 107 of the Act). Although lesser known and lesser recognized by trademark owners, the Lanham Act (Title 15, Chapter 22, U.S. Code) protecting trademarks is also limited by a judicial doctrine of fair use of trademarks. Determining whether or not a particular use constitutes fair use typically involves a multi-factor analysis that is often highly complex and frustratingly indeterminate; however, a use constituting parody can be a somewhat simpler analysis, even where such parody involves a fairly extensive use of the original work.

We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com constitutes parody—it clearly does. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.

Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.

In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.

I’ve been desultorily following the story of Second Life, including criticisms of the hype surrounding it, but I have to say, this kind of response buys them a metric truckload of slack from me. Well done.

(Via EFF DeepLinks.)

Comments on Well done, Second Life:
#1 ::: Xopher ::: (view all by) ::: January 23, 2007, 03:42 PM:

The part that stuns me is that they even granted him a license to use their logo on his parody t-shirts! I don't think he even asked for that.

I may look into this Second Life thing.

#2 ::: JC ::: (view all by) ::: January 23, 2007, 03:49 PM:

#1: IANAL, but I think granting him a license counts as vigorous enforcement of trademark. (Linden Labs needs to do that so that they don't lose rights to it.) After all, granting the license implies that Darren needs one since he would otherwise be infringing on their trademark.

I think this is a really cool solution. Linden Labs does its corporate duty by enforcing its trademark without being brainless about it.

#3 ::: Lawrence Evans ::: (view all by) ::: January 23, 2007, 03:52 PM:

That's class.

#4 ::: dan ::: (view all by) ::: January 23, 2007, 03:59 PM:

...and style!

#5 ::: abi ::: (view all by) ::: January 23, 2007, 04:19 PM:

When I mentioned getafirstlife to the Hub, he thought I was referring to this review.

#6 ::: Sternel ::: (view all by) ::: January 23, 2007, 04:21 PM:

Wow, and just a few days after I joined the ranks of SLers-who-try-it-out-and-never-go-back -- I finally gave in and uninstalled the spacehog off my computer. My timing is excellent.

That being said? I really want a teeshirt from this guy now. The fact that he is now "licensed" just makes it all the better.

#7 ::: Greg London ::: (view all by) ::: January 23, 2007, 04:23 PM:

My initial reaction harks back to a rather devious gamemaster who conditioned me to shout "I DISBELIEVE!" whenever things were looking too good to be true.

Cause in his world, sometimes it really was too good to be true.

#8 ::: enjay ::: (view all by) ::: January 23, 2007, 05:15 PM:

As they say inworld, "Heh."

I'm heavily into Second Life, but I think the parody is funny and reasonably (not all of us give up our first lives, you know!) accurate. And though as a company Linden Labs certainly deserves criticism in some areas (notably on how unprepared they were for dealing with the consequences of all the hype, and for an apparent lack of a comprehensive business plan), I'm not at all surprised that they responded this way.

If you just dip into SL with no roadmap, don't expect to be hooked. The attractions, for me at least, fall into two categories:

1. Finding really, really wonderful examples of human creativity and expression. These require digging for, given that they are buried under mountains of virtual stripmalls, casinos, clubs, and dimwitted doofuses. To get an idea of some more interesting things, check out the Baedeker at http://secondtourist.blogspot.com/, or try any of the Caledon sims, which are themed Victorian Steampunk. Go to the planetarium at Spaceport Alpha. And of course, there is much, much more.

2. Building. Modelling in 3D is fun. (I assume that the scripting is just as much fun for scripters, but it makes my eyes cross.) I think it's so much fun that I've bought an island. There are technical limitations, but still, there is an amazing amount that can be done.

Is it overhyped? Absolutely. Companies are jumping in because this is what's hot, but most have no real understanding of how it works, either technically or socially, and consequently have no idea of how to use it to their benefit. Go to the Reebok sim and there's a huge store that sells customizable shoes. And a bit of window dressing. Why would anyone be surprised that there's no one there and that it's not doing much for them beyond the buzz of the opening? It's dull as ditchwater. Yet there are so many things that they could have done to give people things to do, and generate lasting presence and buzz; create virtual basketball games for people to play, show video of sports highlights... you see what I mean.

SL has wonderful potential for some uses: I'm very interested in how it can be used in education, for example, or in things like presenting interactive virtual exhibits in parallel with real-world exhibits. There is value there, despite the fact that so many are not using it to its potential. But it's important to remember that virtual worlds are in their shake-down stages: where the real value resides is still in the process of being figured out.

#9 ::: David Wald ::: (view all by) ::: January 23, 2007, 05:53 PM:

Here's Harold Feld's take on this.

JC@#2: Feld (who IAL) takes it exactly that way -- a way to assert their rights without squashing anybody.

#10 ::: Fragano Ledgister ::: (view all by) ::: January 23, 2007, 06:02 PM:

There's a lawyer you'd want on your side.

#12 ::: madeleine Robins ::: (view all by) ::: January 23, 2007, 08:49 PM:

That's just a lovely thing.

#13 ::: Dave Luckett ::: (view all by) ::: January 23, 2007, 09:37 PM:

enjay #8: "But it's important to remember that virtual worlds are in their shake-down stages: where the real value resides is still in the process of being figured out."

What would Xopher say? "So mote it be"?

But it's starting. It's starting. I may see it yet, before I die. I had that hope about the colonisation of the moon, but I'll settle for either.

#14 ::: Farrell McGovern ::: (view all by) ::: January 23, 2007, 10:08 PM:

Wow...The world needs more companies like Linden!

ttyl
Farrell

#15 ::: pericat ::: (view all by) ::: January 23, 2007, 11:01 PM:

I've been working on an island for two-three months. Someone came by and took pictures of it recently.

There's no more point to SL than there is to RL. I like a pastime where I can make up my own points, though.

#16 ::: JKRichard ::: (view all by) ::: January 24, 2007, 12:06 AM:

Actually pericat @ 15 there's a lot of points and great usage behind SL.
A number of programming courses at major colleges and universities use SL to teach primitive modeling and script behaviors.
There are many corporations which also maintain a SL identity and even use SL as a venue for telecommuting and boards meetings.
There's been extensive research done in human behaviorial studies--- especially interesting to myself is how in a "free form" environment people will still tend to make laws, regulate, and seek out order. Huge amounts of interest is still being taken in watching RL/SL subcultural mirroring.
Patterns emerge beyond viral marketing algorythms in SL that have caused combinatorical mathematicians to take a pause and re-evaluate formulae.
There's PhD disertations being written and defended on SL as we speak...
Now granted a lot of SL content is geared towards the 'adult' and 'mature' crowd, but you really have to wonder if that is because that's the type of people it attracts or perhaps when hidden behind a screen and safely represented by an avatar...most people just enjoy playing with their own id *snicker*.
*I have a friend who works at Linden if you want him...I'll call him on over....*
-=Jeff=-

#17 ::: pericat ::: (view all by) ::: January 24, 2007, 12:26 AM:

Actually pericat @ 15 there's a lot of points and great usage behind SL.

My apologies, I think I may have been unclear. I meant that there was no overall, universal specific goal in SL, toward which all participants strive.

#18 ::: Dave Bell ::: (view all by) ::: January 24, 2007, 02:24 AM:

JKRichard, #16, the masquerade element certainly gives some freedom to try things, and it goes back a long way. The early multi-user games, text based, tended to be multi-player Adventure-style places, but they were played by mostly-male university students.

Sex was inevitable.

NSFW report from Second Life

The "overall-goal" approach is just a different way of designing a game. Build that in, and you get something different.

#19 ::: Tina ::: (view all by) ::: January 24, 2007, 03:21 AM:

That's seriously cool, especially that they went on to grant the limited license -- even if their reason is to protect their trademark, they could just have easily asked him to change that.

I actually recently took a look at their web site, out of curiousity, and it does look like it could be an interesting pursuit, especially if you have any interest in object design (which I do). I'm not sure I'd really want to invest the time in it but knowing that the people behind it are reasonable definitely makes it more likely I'll try it.

#20 ::: Annalee Flower Horne ::: (view all by) ::: January 24, 2007, 07:00 AM:

Very classy of them.

I'm not really into online gaming in general (nothing against it, mind, just not my cuppa), so I'm only vaguely aware of second life (I seem to recall something about the US Government trying to tax linden dollars or something).

But I agree: very, very classy of them to take the joke as a joke and move on. It's also clearly a good business decision, because it's generating postive press, links, and exposure.

#21 ::: albatross ::: (view all by) ::: January 24, 2007, 09:11 AM:

I wonder how much this is driven by the fact that they have real stuff to worry about. I always assume that the stupid cease-and-desist letters are driven by the desire of someone in the company to be seen to be doing something, to justify their position. I think if you really are obviously doing something, you might have less need for makework like that.

Very cool, though.

#22 ::: Vicki ::: (view all by) ::: January 25, 2007, 03:32 PM:

Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody.

That is great: the combination of "we get it" and the legalistic phraseology. And it's nice to see a trademark owner pointing out the fair use aspects of trademark.

#23 ::: A.J. Luxton ::: (view all by) ::: January 26, 2007, 04:44 AM:

Re JC #2, David Wald #9:

That's intriguing. That creates a new model in my head for trademark and trademark enforcement. It's as if we've been saying for a long time that, if you want to keep a gate on your property, you must make a lot of use of the gate; and people have been interpreting that to mean that you must keep the gate closed and locked, or bargain for a toll, as the "use of the gate" must be keeping people off your property. If you leave the gate open, it's as good as having no gate, right?

I think this is the first time I've seen anyone figure out that they can open the gate and let someone in without making the gate useless. Why'd it take so long? No idea. I blame dualism.

#24 ::: Del Cotter ::: (view all by) ::: January 26, 2007, 09:15 AM:

That's exactly the sort of notice you see on privately-owned paths in England, that the owners allow the public to make use of. "Go ahead, but, just so you know, this is *not* a right of way. We reserve the right to close this path to the public at any time." I believe there is a legal danger that a publicly-used path on private property may become a public right of way if the owners aren't careful, but it's not a danger that can't be averted without permanently closing the path. A sign granting permission (and a little symbolic path-closing every so often) does the trick.

If I may indulge in a little big-corporation paranoia here... is it a coincidence that the notion of trademarks lapsing if not vigorously and expensively defended is one that happens to allow large corporations with legal clout to keep and extract revenue from their trademarks, while making it hard for individuals and small business owners to do the same?

#25 ::: Lawrence Evans ::: (view all by) ::: January 26, 2007, 11:53 AM:

In Massachusetts, the law is (or at least used to be) that if you leave a path open for a year and a day, you lose the right to close it. Lots of private roads and the like are therefore closed on either Christmas or New Year's Day.

#26 ::: James D. Macdonald ::: (view all by) ::: January 26, 2007, 12:12 PM:

Up here we have roads that are marked as being closed from 15 November to 15 March -- not because of any need to keep 'em private, but because they aren't plowed (and any time plowing isn't needed between those dates they're generally deep mud).

(A friend of mine who lives a few miles up one of those roads bought a surplus Army deuce-and-a-half to get to the foot of the hill and the parking place for the regular car.)

#27 ::: joann ::: (view all by) ::: January 26, 2007, 01:12 PM:

I have no idea if it's still the case, but back in the eighties Stanford used to pick a dead calm Sunday every year to "close" the campus. I put this in quotation marks because what actually happened was: they'd set up roadblocks, stop everyone, read them a lecture about how it was private property and not public right of way, and then let people in.

#28 ::: Henry Troup ::: (view all by) ::: January 26, 2007, 08:39 PM:

When I worked for Bell-Northern Research, here in Ottawa, security'd close the gates one day a year for that reason. Since there was a city bus route that ran through the campus, it did get noticed.

#29 ::: Dawno ::: (view all by) ::: January 26, 2007, 11:37 PM:

JKRichard @ 16 said "There are many corporations which also maintain a SL identity and even use SL as a venue for telecommuting and boards meetings."

Back in December the network equipment company Cisco launched their virtual campus on Second Life.

#30 ::: mythago ::: (view all by) ::: January 29, 2007, 01:26 AM:

JC is correct. The real reason that you see so much cease-and-desisting is that if a company says "Eh, it's funny, leave 'em alone," that can be used against them later by an Evil Infringer. By granting a license, Linden Labs is allowing him to do the parody in a way that does not harm their intellectual property.

Which doesn't detract from their coolness, it just means their lawyers did not trade brain cells for a sense of humor.

#31 ::: Seth Breidbart ::: (view all by) ::: January 30, 2007, 10:33 PM:

I think in Massachusetts it takes well over a year for an easement to be created. (E.g. Harvard Yard is closed one day per year (Commencement), so the interval is sometimes over a year.)

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