DMCA Abuse and Blackmail?

[LeftyLoading]

Hello, 

Several years ago myself and another resident created a 3D representation of a fan art illustration found on google. He built one base part and I built the rest. Last month I decided to have another crack at a more detailed version in mesh with many alterations. The person I had worked with in the past contacted me and not too pleasantly threatened to DMCA me and have me banned if I did not split any income with him.  He claims he has ownership of the work because he built one small part of it 5 years ago and that I have copybotted him etc, even though the new one was built in Blender from scratch. Does he have any claims on it? If not, does Linden Labs investigate the work before they flag you and remove the content or do I have to take the hit and counter it with the proof? Sorry if this is a poorly executed description of my question, i'm a bit tired. Thank you for any help. =)  

[Innula Zenovka]

You would have to consult a lawyer with a particular expertise in the law of Intellectual Property to get any kind of answer about who owns the IP on the disputed work. 

As to LL's role in all this, I think the procedure is that the other resident, if he's not just bluffing, has to file a DMCA notification, and then you respond by filing a counter-notification.  The process is described here.

LL don't get involved in trying to adjudicate anything.   You and the original complainant need to have the matter adjudicated in the US courts.   

As I understand it, LL won't let you sell the item in contention until the matter is sorted out.

 

[Nalates Urriah]

You can't file a counter Take Down until the Take Down is filed. You have to refer to the case ID of the Take Down.

If you want to go ahead and market the disputed creation, discuss it with the former partner. If you two cannot come to terms, I would give up that item and make something new and different that could not be disputed. If I thought the problem person was going to be vindictive, I would copyright the new creation before uploading it ANY WHERE.

I would let the person know that if they did file a bogus/false Take Down I would be suing for damages. The real threat in such a threat is the their cost of defending against your charges. 

The system is broken in favor of attorneys. The game is played by putting the other party on defense with a real claim or one just real enough to be believable. 

[Nalates Urriah]

Innula provided an accurate synopsis of how DMCA works in SL. 

The only missing part is COST. It is possible for a citizen to file a DMCA Take Down and a DMCA rebuttal. But, resolution of the dispute is a court process and requires attorneys.

Also, there are companies that will file a DMCA Take Down notice for US$10. There are numerous DMCA "Agents" that are not attorneys. Some work for large law firms. Others freelance. The cost of their services varies greatly. The $10 number is popular in many recent ads.

There is no 'average cost' for a DMCA process beyond the initial notice and rebuttal. Google was handling 5 million DMCA Take Down notices per year in 2014 (3 million 2010). They figured the average cost per 'target' to defend against a 'Take Down' was US$100. But, these are only the initial actions. To resolve a dispute is like any legal action, you pay by the hour.

Since DMCA is a violation of US Constitutional principles, you are placed in the position of having to prove your innocence. Because the USA does not have good tort law the winner often has to pay their own legal fees. The loser can walk away relatively unharmed. Thus in the US legal action can easily be used for coercion (basically blackmail) regardless of innocence or guilt. It is a pay me or go to court game where the defense is at a huge disadvantage and therefore usually pays to save the greater cost of going to court. Attorneys hate it that Trump has promised tort law reform. That would put a huge dent in their income but would help people in your position.

In general, unless you can make several thousands of RL dollars from your fan... move on to something else.

 

Edited April 1, 2017 by Nalates Urriah

[LeftyLoading]

Thank you Innula and Nalates. I'm starting to feel a bit less stressed. Oddly enough. 

I am a bit concerned about my account being flagged for a take down as this can lead to account removal. I don't have any flags and would prefer to keep it that way ^^.  Would it make any sense to go ahead and file a counter DMCA with all the evidence and a location of where the two items are set up side by side? I dread having to retain a lawyer. 

Thank you again ^^

Edited April 1, 2017 by LeftyLoading

[LeftyLoading]

33 minutes ago, Nalates Urriah said:

Thus in the US legal action can easily be used for coercion (basically blackmail) regardless of innocence or guilt. It is a pay me or go to court game where the defense is at a huge disadvantage and therefore usually pays to save the greater cost of going to court. Attorneys hate it that Trump has promised tort law reform. That would put a huge dent in their income but would help people in your position.

Ha, well as least I know I wasn't being dramatic calling it blackmail. What you said is all truth though. I probably can't afford to fight for "What is morally right". It frightens me to think that if people see this type of coercion actually works then they can use it over and over to screw the people who work at creating nice environments for Second Life as well as other platforms. >.< Maybe i'll just take up knitting. 

[LeftyLoading]

Thank you both for your advice. I will bake on for a few days and probably try to settle with him.  At lest I can say that I have learned a lot about the process, for good and bad. 

Take Care ^^

[Innula Zenovka]

As Nalates suggests, if the worst comes to the worst fighting the matter in court is likely to be far too expensive to be worthwhile.   Trying to reach a settlement both of you can live with is almost certainly the best way to proceed.  

However, in the event that, for whatever reason, he does file a DMCA take-down notice with LL, I would strongly suggest you file a counter-notification, denying the allegation that you've stolen his IP.    That way, even if neither of you take the matter further in court, LL have it on record that you do not accept the charge.    That can't hurt, and might be useful at some point in the future. 

[LeftyLoading]

Oh yes! If he does indeed go ahead with the DMCA, I will file a counter-notification. I've assembled my proof and files according to the site, just in case. I strongly believe that I have more then enough evidence to prove my case. I doubt he will be able to go any further with it. I know LL doesn't tell you, but I do wonder if once the object is reinstated would there then be any action taken against his account, or if it is just considered a settled argument. That may be my bitter side talking though.  

[Rolig Loon]

DMCA is a legal matter, not a TOS matter.  Linden Lab's obligation is to remove contested material from its servers until they have been notified that a successful counterclaim has been made.  That's it.  As far as the law is concerned, they are a neutral party in whatever dispute you have with the other person.  Once it's settled, life goes back to normal.  There are no other implications for either account (unless of course one of you has done something else to violate the TOS, but that's a different matter).  Read http://secondlife.com/corporate/dmca.php

Edited April 2, 2017 by Rolig Loon