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Jennifer Boyle

Copyright Questions

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It occurred to me that there is one thing about virtual worlds that makes copyright questions much more complicated that they are in real life:  everything is intellectual property that may belong to someone.  For example, trees, grass, terrain, buildings, animals, roads, waterways, vehicles, clothing, and animals cannot be copyrighted in real life, but they can, and probably are, in Second Life.  As I thought about this, I wondered about where the boundaries are that determine what kind of reproduction constitutes infringement.

Consider an extreme case.  I buy a copyrighted texture within SL and use it as decorative wallpaper in my living room.  It certainly would be infringement for me to take a snapshot of the bare wall, crop it so that nothing but the texture showed, and distribute that.  What if I make a snapshot of the room with the wall in the background, so that the texture is included, but other things are, too, that someone could crop to recover the texture?  What if I do the same after hanging a couple of (also copyrighted) pictures on the wall?  Would it change anything if my avatar was standing in front of the wall?  What could I do that would make it OK to publish a photo of the room?  

My avatar consists of a copyrighted skin on a copyrighted shape wearing copyrighted hair, eyes, and clothing.  Why is it not infringement to publish photos of her, even if I am the photographer/publisher, since I was not granted licenses to reproduce images of the things that make her up?

Whenever a high-resolution snapshot is taken looking more or less straight toward a flat surface, the texture on the surface is captured pretty much intact.  Are all such snapshots infringing (unless specific rights were granted)?  If not, why not?

You get the idea---when the whole universe is made of nothing but intellectual property that is subject to copyright, knowing what is permissible in terms of photography becomes complicated, at least for me.

I would like to know what others, particularly those with actual knowledge of IP law, think about this.

 

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That really doesn't help me.  It does grant certain rights with respect to content produed by LL.  It says, "If the content that you capture is subject to any trademark, service mark, trade dress, publicity rights, or other intellectual property or proprietary rights, you must obtain the necessary licenses and permissions to use the content, and you use it at your own risk."  There is nothing that addresses my question, which has to do with what rights are necessary for snapshot under what circumstances.

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Remember a few years ago when Wynx Whiplash had an issue with somebody using her tiny avatars to produce images for a RL publication? She said "No" to them and they bullied her and said they had the right to use whatever they liked. I cannot remember how it ended.

The discussion was heated then, and as seems usual, was fielded on both sides by people citing laws. Some stated that the situation can be compared to RL photography of RL objects, and others that SL photography is more of an image render of others 3D copyrighted creations.

I'd hate us to lose the freedoms we have to create inworld images, and to share them on such sites as Flickr. But do want to see protection for creators against others using their textures and modelling for RL profit.

 

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Actually it does give you permission:

As long as you comply with the terms and conditions below, both Linden Lab and the Residents of Second Life (collectively, “we”) grant you the following copyright licenses:

  1. A License To Capture. You may take snapshots and capture machinima of the 3D content we created that is displayed in-world, and
  2. A License To Use. You may use the resulting snapshot or machinima within or outside of Second Life in any current or future media.

“Use” means “use, reproduce, distribute, modify, prepare derivative works of, display, and perform.” For other definitions, see Definitions.

Both the License To Capture and the License To Use (collectively, the “Licenses”) are non-exclusive and royalty-free. In addition, the License To Use is worldwide, sublicenseable, and transferable.

 

The word "we" refers not to LL exclusively, but collectively to all residents.

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Anaiya Arnold wrote:

The word "we" refers not to LL exclusively, but collectively to all residents.

So, can LL contract in the name of all residents, and grant licenses for their IP?

 

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Exactly. The grant of that license is implicit in making the upload. Everyone knows that because they all read the TOS and the policies it refers to, didn't they.

I think there is a difficult point that the OP refers to - what happens when the "snapshot" is made in such a way that a texture can essentially be reproduced and distributed as such*? There was some discussion of this when the policy was first introduced. The majority view was that it should be obvious that the policy would not be regarded as granting a license in such a case.

Suggestions for addition of a clause explicitly excluding that case were not taken up. I guess the question would probably have to be settled in a court case.

* ETA - of course, this would be very difficult with textures on curved surfaces, such as skins, which would have to be flattened. However, where textures are or can be applied to flat surfaces and made full-bright, it is trivial.

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twins.jpg

 

There is another part of the TOS 7.8 that spells out the limitations in using images, etc in SL pictures and machinama.

"You agree that you will not copy, transfer, or distribute outside the Service any Content that contains any Linden In-World Content, in whole or in part or in modified or unmodified form, except as allowed by the Snapshot and Machinima Policy, or that infringes or violates any Intellectual Property Rights of Linden Lab, other Content Providers, or any third parties."    http://secondlife.com/corporate/tos.php#tos7

How a court would apply all this might be interesting. For instance, you are not being granted a carte blanche license to sell the content.

Film makers deal with this all the time.  The question becomes whether the use of an image was incidental or intentional like in the above scene from Twins.  Basically when filming a street scene on a real street, everything is considered incidental.  But if the camera stops and focuses on an image then proper license has to be obtained.  That is the guideline.  If you don't obtain license, at least in the U.S., the Court becomes the final arbitrator (as to whether the appearance of the image was incidental or not) if someone challenges your use. 

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The TOS tries to give you the right to take snapshots and movies in SL.

It looks legally dubious to me.

It has not been tested in court.

Feel free to be the first to go to court and test it.

My advice is to consult with a lawyer who specializes in intellectual property, before doing anything.

 

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Feldspar Millgrove wrote:

The TOS tries to give you the right to take snapshots and movies in SL.

It looks legally dubious to me.

It has not been tested in court.

Feel free to be the first to go to court and test it.

My advice is to consult with a lawyer who specializes in intellectual property, before doing anything.

 

I am not a Lawyer.  But I have dealt with copy right issues over a photograph.

I don't see what would be dubious about it.  You grant a limited license to LL which allows a LIMITED USE by other Residents.  That's pretty simple. 

Go read the Face Book TOS regarding photos you own the copyright to that you personally post to Facebook and google the subject.  The extension of the Limited License that you grant to Face Book and that Face Book extends to its users essentially says that you surrender the rights to your photos and sorry,, when you agree to their TOS that's pretty much it.

But as I said, I am not a Lawyer.  I only have a general understanding of the legal concepts involved.

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Well usually no one gets into trouble for taking a snapshot or making a video/film in Second Life in fact I have never really had an actual IP issue with that.

http://wiki.secondlife.com/wiki/Linden_Lab_Official:Snapshot_and_machinima_policy

There is also a thing called Fair Use.

I am not asking anyone to break LL Policy Here, TOS, or CS, however even if someone says you can't take a snapshot on their land there is nothing that can prevent you from doing such, you can use a viewer to bypass it, or use a program to capture images/video, and do as you please outside of Linden Lab jurisdiction the only way they could really do something is by getting a lawyer for that.

Keep in mind this isn't a game, or service like Lineage 3, or one of those strict game development companies that make people sign legally binding contacts when they beta test, or work with the company called a (NDA) non disclosure agreement.

Stealing of anyones texture in Second Life is so easy even a caveman can do it...

1. Use a program take a snapshot of the texture and save it.
2. Use a CopyBot.
3. Use GL Intercept.

There are however general things you can do to support the developers of skins, and textures for example.

1. If you run a clothing company for example list where your models bought the Skin/Hair/Shape, Etc. that they are wearing the name and where they got it from, it is not a must do thing however it helps those looking to buy some of the stuff they like, and gives credit to those who created the skin and other things. Plus overall it can bring more profit.

Lawers and Second Life.

1. Things such as fullperm textures, I agree that when people buy them they should not try to ruin another persons business however some people will on purposely hand them out, post them on Torrents, or resell them illegally to make money. Selling them illegally and setting up their shop on an alternate account, or sleeper account not linked to their Computer Hardware information is a common thing, then launder the money out from Second Life to their paypal and then to RL it can be a hard thing to deal with when it comes to getting lawyers involved over a virtual avatar when.

2. You have no RL information a bout the person, and only their avatar name + all LL gets is their IP/Computer Hardware ID which are easily changed. People also use Free Wi-Fi networks such as Burger King, or anyone elses Wi-Fi connection to do the piracy, or such what this means is that it could harm innocent people, and or take a lot of time in a court to track them down and most people in Second Life are not willing to do this.

The biggest problem with our Grid right now is this however.

1. CopyBotting, reselling/Launder Money, or illegally sharing outside of Second Life. < The botters always change their info and sometimes look like 100% legit people shopping and spending money.

2. illegal RealWorld works in Second Life such as Video Game content being imported into Second Life mesh such as Turbo Squid and resold more than likely without consent.

The problem however is that the only way Linden Lab will really act on this is if the game company for example files a DMCA claim on the content/user selling the content on the market, or if another resident files a DMCA in Second Life. I see Botters proudly using stolen content and members of groups/people who do such quite often it is so obvious but they have been playing this game for over 500+ days and I wonder how they manage to get so far I guess it is because someone needs to file a DMCA on them...

Otherwise if no DMCA is filed the Botter, or person who is in violation of trademark in SL, or Real World content being used in SL, nothing gets done sometimes.

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It never occured to me that people would steal full perm textures and templates. But of course they would... it happened to me. I bunch of my clothes were being sold on a website. They were not full perms either. Sheesh! I didn't bother trying to stop them because years ago my blog posts were being ripped and published word for word on a site in Norway. I spent a year trying to stop them, but gave up... It's the wild west.

 

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Drongle McMahon wrote:

Exactly. The grant of that license is implicit in making the upload. Everyone knows that because they all read the TOS and the policies it refers to, didn't they.

 

The TOS is 11,544 words, 18 pages, according to MS Word.  I understand that there needs to be a lengthy document written in legaleze for the hardcore business people in SL, and for their lawyers.  There also needs to be a concise summary written in English for we SL hobbyists who have no lawyers.

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in a nutshell:

An item/object is copyrighted as that type of item/object.  So, a hairstyle is copyrighted as a hairstyle.  Taking a screenshot of an Avy wearing said hairstyle is not an infringement, because you are not re-creating the hairstyle, you are creating an image.

hairstyle = hairstyle

image != hairstyle

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Perrie Juran wrote:

I don't see what would be dubious about it.

You mentioned the Facebook TOS, but that's entirely different.  FB merely says that FB itself may use your uploaded photos.  In the case of Second Life, we're talking about people who are *not* Linden Lab taking your content and using it for purposes outside of Second Life.

So a couple of issue bundles off the top of my head: LL is attempting to transfer poorly specified broad rights to unspecified third parties; and generally, each work requires a written contract. A lot of other issues come to mind, but those two are  a mouthful to get you started.  The TOS can only possibly ever do what is within the law, it can't contradict it or override it.

Something to keep in mind is that Linden Lab is not promising to indemnify you against someone who would sue you for infringement.  You'll still get sued, have to mortgage your house to pay for your lawyers, and hope that the court sides with you.   There may be some possibility that if you lose, you could then try to sue Linden Lab for misleading you, I guess.

Like I said:  This has not been to court.

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Luschious Nightfire wrote:

in a nutshell:

An item/object is copyrighted as that type of item/object.  So, a hairstyle is copyrighted as a hairstyle.  Taking a screenshot of an Avy wearing said hairstyle is not an infringement, because you are not re-creating the hairstyle, you are creating an image.

hairstyle = hairstyle

image != hairstyle

Second Life is not the real world, it is a world of digital art.  Essentially, it is pictures.  The "hair" is in fact not hair, it is a picture of hair. In general, "items" in the real world do not have copyrights attached to them.  The reason that you can copyright the "hair" is that it is, in fact, a piece of digital art -- a picture. If someone takes a picture of it, what they have done is make a copy of a picture.

hairstyle == image

A more obvious example is a "texture" -- how could anyone not understand that a texture is a picture? And if you copy that picture by including it in a snapshot or a machinima, that's subject to copyright law.

 

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At this point, I am going to stop posting on this topic.

I don't think anyone wants to hear my remarks, because it is not the answer they were hoping for.  Rather than hear my bad news, they will be able to find someone who will tell them that everything is OK, there could be no problem, do what you want and you'll be fine.

My only real advice (again) would be:  consult a lawyer who specializes in intellectual property law.

 

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Feldspar Millgrove wrote:

hairstyle == image

 

a hairstyle does not equal an image, its a 3d object an image is 2d, you'll look pretty stupid walking around with a picture of a hairstlye on your head as opposed to the real hairstyle.  So no they're not the same

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