Marketplace - Gachas -vs- Intellectual Property

[Dessi Tyran]

Let me start off by saying this topic is meant as an open table discussion to help me better understand the Marketplace rules on spam and intellectual property rights and how it pertains to gacha resellers.

I have had my virtual hand slapped twice now for intellectual property and I would like to understand it better, so it doesn't happen again. After a  weekend of research, I have questions and perhaps some of you might be able to help me answer them.

I have repeatedly read the marketplace rules and guidelines. As a gacha reseller, we all know, we have no control over what a creator makes or names their items. How do you feel about being held responsible for someone else's product naming and creation?

There are four types of intellectual property; copyright, patent, trademarks and trade secrets. Also,

Intellectual property definition from Oxford states; and I quote.

• A work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc.

Please explain to me, how a gacha reseller is suppose to know a creator from a foreign country has created something or its name would be considered intellectual property infringement? Furthermore, know all the US based words and brands that are protected by intellectual property; copyright, patent, trademarks and trade secrets?

I am being held responsible for someone else's creation and its naming instead of the creator. I am wondering if anyone else is having or had this problem? What about gestures residents use. They take clips from movies, songs and so on. They are listed on the marketplace. Is that not intellectual property theft? (please note, I am not attacking gestures only using it as an example.)

Per the Second Life Marketplace Listing Policies, specific activities are disallowed, including but not limited to Item or Keyword Spam, Listings for harmful or disruptive content, and Anti-Competitive or Abusive Behavior, which includes using alternate or related accounts to purchase or rate your own items. Branded items may be listed or sold only by the brand or intellectual property owner or its authorized agents.

And

As provided in our Terms of Service, it's important to remember that you're responsible for respecting intellectual property rights, and if you're importing content to Second Life, you must have all the necessary rights and permissions to do so.

My problem with this is as I stated above. A gacha reseller does not pay to import an item or have any hand in its creation or naming. So how are gacha resellers held to the same standard as a creator? Shouldn't the item be thoroughly investigated to whom the proper creator owner is and then dealt with accordingly? As it is now, gacha resellers take not only the monetary loss but also receive a warning of the abuse or banned for a period of time. Plus it is noted on your account. This is one heck of a double whammy. Is this a risk I am taking and haven't realized until this moment? I understand if you use a brand name or any sort of reference in your keywords is taboo.

What about the flagging system on the Marketplace. What keeps a hater or competitive resident / store from reporting a gacha reseller for intellectual property infringement (knowing we are not the creators of the items we sell.) in hopes a person or store gets banned or loses their store / account? There are warnings not to abuse this feature but as a resident how do we know it isn't being abused, or we're not being maliciously attacked by someone?

You could say, well don't use brand names in your keywords. Okay, do you know every brand that has been copyrighted far and wide? I don't. Mistakes happen. Do you know if a creator uses a brand phrase in the naming of their product it is also considered intellectual property infringement? It is, I found out the hard way.

I feel there needs to be more clarification where gachas are concerned and the risks gacha store owners, are responsible for and taking. These are my thoughts and feelings on the topic. They are by no means an attack on someone or Linden Labs. I understand there are rules, and we all need to protect ourselves, which is what I am doing by asking questions.

Edited May 17, 2021 by Dessi Tyran

[Polenth Yue]

The simple answer is that all sellers are held to the same rules, because everyone is covered by the same laws. Linden Lab has to remove things when told to by the rights holder, regardless of the circumstances of that item being up for sale.

The end result is that you do need to learn as much as you can about the laws. If you don't recognise a word used to describe something, always Google it and see if it's a brand or similar.

[Charlotte Bartlett]

2 hours ago, Dessi Tyran said:

Let me start off by saying this topic is meant as an open table discussion to help me better understand the Marketplace rules on spam and intellectual property rights and how it pertains to gacha resellers.

I have had my virtual hand slapped twice now for intellectual property and I would like to understand it better, so it doesn't happen again. After a  weekend of research, I have questions and perhaps some of you might be able to help me answer them.

I have repeatedly read the marketplace rules and guidelines. As a gacha reseller, we all know, we have no control over what a creator makes or names their items. How do you feel about being held responsible for someone else's product naming and creation?

There are four types of intellectual property; copyright, patent, trademarks and trade secrets. Also,

Intellectual property definition from Oxford states; and I quote.

• A work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc.

Please explain to me, how a gacha reseller is suppose to know a creator from a foreign country has created something or its name would be considered intellectual property infringement? Furthermore, know all the US based words and brands that are protected by intellectual property; copyright, patent, trademarks and trade secrets?

I am being held responsible for someone else's creation and its naming instead of the creator. I am wondering if anyone else is having or had this problem? What about gestures residents use. They take clips from movies, songs and so on. They are listed on the marketplace. Is that not intellectual property theft? (please note, I am not attacking gestures only using it as an example.)

Per the Second Life Marketplace Listing Policies, specific activities are disallowed, including but not limited to Item or Keyword Spam, Listings for harmful or disruptive content, and Anti-Competitive or Abusive Behavior, which includes using alternate or related accounts to purchase or rate your own items. Branded items may be listed or sold only by the brand or intellectual property owner or its authorized agents.

And

As provided in our Terms of Service, it's important to remember that you're responsible for respecting intellectual property rights, and if you're importing content to Second Life, you must have all the necessary rights and permissions to do so.

My problem with this is as I stated above. A gacha reseller does not pay to import an item or have any hand in its creation or naming. So how are gacha resellers held to the same standard as a creator? Shouldn't the item be thoroughly investigated to whom the proper creator owner is and then dealt with accordingly? As it is now, gacha resellers take not only the monetary loss but also receive a warning of the abuse or banned for a period of time. Plus it is noted on your account. This is one heck of a double whammy. Is this a risk I am taking and haven't realized until this moment? I understand if you use a brand name or any sort of reference in your keywords is taboo.

What about the flagging system on the Marketplace. What keeps a hater or competitive resident / store from reporting a gacha reseller for intellectual property infringement (knowing we are not the creators of the items we sell.) in hopes a person or store gets banned or loses their store / account? There are warnings not to abuse this feature but as a resident how do we know it isn't being abused, or we're not being maliciously attacked by someone?

You could say, well don't use brand names in your keywords. Okay, do you know every brand that has been copyrighted far and wide? I don't. Mistakes happen. Do you know if a creator uses a brand phrase in the naming of their product it is also considered intellectual property infringement? It is, I found out the hard way.

I feel there needs to be more clarification where gachas are concerned and the risks gacha store owners, are responsible for and taking. These are my thoughts and feelings on the topic. They are by no means an attack on someone or Linden Labs. I understand there are rules, and we all need to protect ourselves, which is what I am doing by asking questions.

If you are selling something, you take on responsibility as you are listing something for sale and the TOS (plus US law) applies to you.  The moment you enter as a reseller - you are using the platform commercially so need to do your homework.

A simple way is just Google the name of something before you buy it.   The obvious things are obvious (e.g. anything Disney etc).  If you can't determine if the item is "safe" don't buy it, then resell it - simple way to protect yourself.  

Also know your creators.  Good creators won't infringe copyright nor wade into trademark issues or trade dress etc (we also do our homework).   If you find a creator who is selling things that are not permissible don't buy from them again - give them a very wide berth.  A creator can always make a one off mistake, but it should only ever be that.   

Those who buy the items have the same issues - it is near impossible for a consumer to know all the ins and outs.  So the same advice applies.  

Even then there are still pitfalls, some big name creators historically have been caught (e.g. furniture makers) ripping off 3d Models etc (so google the creator's brand name too before you purchase to resell).   

Think of it as your due diligence, check out the item and creator before you purchase, that way you should hopefully know the "problem" creators to avoid which should give you some better results.

Re brand names in keywords - use descriptors where possible and only as they pertain to the specific item - keywords should be things like "pink jeans" not "Levi jeans".

If you keep a clean house it is harder for anybody to abuse flagging etc.  LL are not stupid and will know if something is (mostly) a legitimate flag.  




 

Edited May 18, 2021 by Charlotte Bartlett

[Rhiana Innis]

4 hours ago, Dessi Tyran said:

Please explain to me, how a gacha reseller is suppose to know a creator from a foreign country has created something or its name would be considered intellectual property infringement? Furthermore, know all the US based words and brands that are protected by intellectual property; copyright, patent, trademarks and trade secrets?

This is the thing that concerns me too. With all the creators we have from around the world, I have no idea what would be classed as intellectual property and yes I know as you say you can google, but what if you don't suspect and you list something anyway, then you get hit with a warning or a ban for something that you honestly didn't realize you had done wrong because you didn't create the item. I'm then gonna be worried about anything else I've listed.  I do try and stick to creators I know and whose Gachas I have played regularly but mistakes happen. I will certainly take more care when listing in the future but feel that resellers shouldn't be treated as harshly as a creator would, Just my opinion of course.

[Dessi Tyran]

Thank you for replying to this thread. As a gacha event opens everyone is quick to list to get those first sales, I am sure any gacha reseller would agree that taking the time to research / google something makes listing less desirable. I can tell you from my own research, I am more leery of continuing. Not only have I done my own research, I also reached out to a lawyer about copyright versus trademark infringement and I walked away with a migraine.  

There are without a doubt many variables in reselling gachas and the use of keywords. And to put trust in a creator not to create or name something illegal is giving them a lot more trust than I am comfortable with. I have already unlisted gachas I feel might be infringement, but I am not confidently sure. So, I am losing possible revenue as is Linden Labs. I would prefer to stand on the side of caution. The knowledge I have learned gives me pause and made me less trusting for my own legal safely when it comes to the marketplace and the use of keywords. 

As the old saying goes, when in doubt, don't. 

[Finite]

This would be similar to receiving stolen property. There's variance across states in how you are charged depending on if you knew or not but in the end you still lose your money. The hand slap from SL is probably just that. A hand slap. The worse is you lose your investment which would happen in any situation like this real, virtual, intellectual or actual property.

I'm a gacha reseller  as well. I also like to purchase things from CGtrader and Turbosquid for personal use. I can generally recognize if I've seen something in SL on either of those sites. If you are ever suspect I'd suggest checking through sites like those. Also, there are some pretty dead give always that someone didn't make the product.

The biggest red flag to me is a nicely crafted mesh and a poorly crafted advertisement for it. A lot of these creator are artists in one form or another in the real world and likely have taken some arts classes. There's a lot of crossover and I can't image someone being very good at creating mesh meanwhile having a very low standard for how their pieces should be displayed or advertised.

If it was a copybotted item I feel like that should be on SL. I feel other places that allow people to upload mesh for the purpose of selling them protect their creators a lot more than SL seems to be able to. I don't mean to knock them but I don't see how it's impossible for them to be able to detect when someone is exporting a large DAE file from their servers. And also not have something in place that scans imported files. I uploaded a video to youtube the other day of me exploring a sim in SL. I had the radio station from the sim audible in the video. It was autoscanned during the upload and demonetized automatically because of the copyrighted music in the background. So the technology isn't impossible or anything. Maybe with the risen fees and such this will be one of the new trinkets.

Edited May 18, 2021 by Finite

[Charlotte Bartlett]

11 hours ago, Dessi Tyran said:

Thank you for replying to this thread. As a gacha event opens everyone is quick to list to get those first sales, I am sure any gacha reseller would agree that taking the time to research / google something makes listing less desirable. I can tell you from my own research, I am more leery of continuing. Not only have I done my own research, I also reached out to a lawyer about copyright versus trademark infringement and I walked away with a migraine.  

There are without a doubt many variables in reselling gachas and the use of keywords. And to put trust in a creator not to create or name something illegal is giving them a lot more trust than I am comfortable with. I have already unlisted gachas I feel might be infringement, but I am not confidently sure. So, I am losing possible revenue as is Linden Labs. I would prefer to stand on the side of caution. The knowledge I have learned gives me pause and made me less trusting for my own legal safely when it comes to the marketplace and the use of keywords. 

As the old saying goes, when in doubt, don't. 

If a gacha reseller doesn't do their due diligence then they accept the risk they may lose their account and may also be party to a DMCA takedown and if the copyright is registered open to damages if court action occurs.

Selling things is a business.   Therefore due diligence is part of the requirement to protect a business. It's all about risk/reward.
Linden Lab isn't using losing revenue (in the real sense - Marketplace fees are sinks).

 

12 hours ago, Rhiana Innis said:

This is the thing that concerns me too. With all the creators we have from around the world, I have no idea what would be classed as intellectual property and yes I know as you say you can google, but what if you don't suspect and you list something anyway, then you get hit with a warning or a ban for something that you honestly didn't realize you had done wrong because you didn't create the item. I'm then gonna be worried about anything else I've listed.  I do try and stick to creators I know and whose Gachas I have played regularly but mistakes happen. I will certainly take more care when listing in the future but feel that resellers shouldn't be treated as harshly as a creator would, Just my opinion of course.

You need to educate yourself sadly- suspect each item before you purchase it.  Resellers are legally just as responsible once you put something up for sale.  You are a business at that point and you are intending to make a profit from a product.  Part of your cost/benefit should include your time to do your due diligence. 

Do it that way, you should reduce your risk.  If you buy blindly and then say "well I didn't suspect" that's on you I am afraid and your risk is increased as a result.  Ignorance of the law excuses not - as they say.  Googling SL brand names brings up a wealth of information (not just the item concerned).    

Some of it is just time, the longer you do it the more you know and more history you are aware of.   It becomes less of an overhead.   I would say within 30-45 seconds you can probably do enough of a search to get a feel.



 

[Finite]

41 minutes ago, Charlotte Bartlett said:

Do it that way, you should reduce your risk.  If you buy blindly and then say "well I didn't suspect" that's on you I am afraid and your risk is increased as a result.  Ignorance of the law excuses not - as they say.  Googling SL brand names brings up a wealth of information (not just the item concerned).    



 

This is true in most cases but when it comes to something like this it would have to be proven that you did so knowingly however it varies state to state. I think SL would have to see more than a singular purchase. If she purchased a bunch of the same gachas from the same reseller at a way lesser than value price then I'd see that as a flag. But 1 singular purchase and resell isn't going isn't going to cut it. If it was direct from a gacha vendor she would have reasonable expectation that the product is original. Especially if purchased at an event. I'd expect a warning from SL and probably worse if its repeated and some scare tactic from a lawyer. But not much more than that for a one off. I'd guess whoever ripped or duped the item got much worse than a warning. And if SL had reason to believe she knowingly did so, she likely would have gotten worse than a warning as well.

Edited May 18, 2021 by Finite

[Charlotte Bartlett]

8 hours ago, Finite said:

This is true in most cases but when it comes to something like this it would have to be proven that you did so knowingly however it varies state to state. I think SL would have to see more than a singular purchase. If she purchased a bunch of the same gachas from the same reseller at a way lesser than value price then I'd see that as a flag. But 1 singular purchase and resell isn't going isn't going to cut it. If it was direct from a gacha vendor she would have reasonable expectation that the product is original. Especially if purchased at an event. I'd expect a warning from SL and probably worse if its repeated and some scare tactic from a lawyer. But not much more than that for a one off. I'd guess whoever ripped or duped the item got much worse than a warning. And if SL had reason to believe she knowingly did so, she likely would have gotten worse than a warning as well.

Those are really good points.

In reality, willful Copyright Infringement requires proof of intent in court yes. However just "regular" copyright infringement does not and many cases do not aim for the willful test.     

Sadly we do not have a reasonable expectation that buying something from a content creator in Second Life means the product is original.  In fact, more to the contrary sadly.  

There is a known and growing issue of multiple layers of IP issues from models which break EULAs from third party sites (e.g. creators who "borrow" 3D stuff from sites they should not, to sell) through to gacha duplication bypassing the SL perms, which creates an infringing "version" each time it is copied.  

Any decent lawyer would find a slew of examples.  These would show that any reasonable commercial business seller would be negligent if they assumed something in Second Life was "golden" for copyright (without some basic due diligence).   LL do not police IP.  They only comply with the Digital Millennium Copyright Act, so there is nothing to base "reliance" on.

However, that all above is right at the extreme end of litigation and rarely happens - I can count on one hand the big legal IP cases with SL creators involved.  

I hope the OP's issues get resolved.  If  they don't find doing research on creators/items helps, perhaps they hopefully will find better creators to buy from in the future.





 

Edited May 18, 2021 by Charlotte Bartlett

[Polenth Yue]

20 hours ago, Dessi Tyran said:

Thank you for replying to this thread. As a gacha event opens everyone is quick to list to get those first sales, I am sure any gacha reseller would agree that taking the time to research / google something makes listing less desirable.

None of this is unique to gacha reselling. Creators have to do this before listing things. Ideally, before making it. When I have an idea, I do a check on names and similar products, to be sure mine will be different enough to avoid problems.

Creators also get caught sometimes if they use components made by someone else. I've seen cases where someone bought meshes and textures, only to find out the seller of those things had stolen them rather than make them.

It does get easier in time though, because you'll start to get a feel for when something looks suspiciously not like the other things in that shop, or the name seems oddly unique, or other things that might mean it's not original.