[Opensim-users] Speaking of Content Theft, How About Our Own Backyard?

Tue Jun 1 17:31:48 UTC 2010

This is more than she advocated in this particular email, but other emails
and her blogs amply support this point of view.

Comments such as "the DMCA process is totally ridiculous" since it requires
her to actually identify infringing content herself.

She has a blog which identifies a great many plants which she presumably
created and have similar plants in various parts of various grids.

Unfortunately "proof of infringement" requires far more than that!

There are typically three tests to be applied:

(1) The alleged infringing article is actually very close to identical to
the original article.
(2) The infringer had access to the original item before creating the
alleged article.
(3) There are many ways in which the item could be constructed.

The "close to identical" is very narrowly defined, for example re-ordering
of a Bell System phone directory into different classifications was held to
be "original" enough not to infringe.

Number 2 is essentially a matter of proving actual creation dates and the
date that the original was "publicly available".

Number 3 is really the most subtle, in this case it would not be enough to
show that both items represent a particular type of plant (e.g. a strain of
rose) since all rose bushes of a particular type would share almost all
characteristics (e.g. a particular shade of red, shape of the flower, and
even the shape and arrangement of the leaves!)

In the Rose Gardening world these things are carefully and uniquely defined
so as to uniquely identify a particular strain of rose and all images of
that strain would contain those characteristics.

This is expensive to verify and prove, unfortunately anything less
effectively cedes "ownership" of all rose images to one creator to the
exclusion of others.

Once again, the goal is to increase innovation and creation rather than
allow any one individual to "lay claim" to certain creations forever!

My comparison with "There.com" is based on an analysis of the costs
associated with marketing any product in that virtual world. There.com
required a per-inspection of every item for "acceptable content" before it
could be sold in world. This raised the cost of each item by almost US$4,
and as you might expect, vastly reduced the type and variety of products
available! I doubt if this was due to incompetence by There.com but to the
complex nature of the problem.

I fully agree that everyone who operates a website or virtual world must
provide the mechanism you describe, however going beyond what you call the
minimum is fraught with many perils. It is a bottomless pit.

In a past life I worked for a startup that sold some software.

Every week I would interview some sales geek who had the "total solution" to
software piracy - usually some form of DRM or "copy protection". Being old
and cynical we insisted on tying these magic solutions in our lab and sure
enough none could deliver what was promised. Most introduced hardware
specific bugs or security flaws of their own! I think a few minutes browsing
PirateBay.org shows the true state of affairs with these "foolproof"
solutions.

About the only thing these all had in common was to take 10-20% of our gross
margin directly or indirectly!

There can be no doubt that you have a "legal duty" to follow up reports of
infringement where there is credible evidence, just as you would with any
other unlawful activity.

However, this does not mean devoting a huge staff to monitoring every
in-world conversation to be sure that no "subversive activity" (or whatever)
is taking place.

My problem is not with enforcement where it is indicated, but with vigilante
type "witch hunts" and the endless other ways to shift the burden of proof
and expense away from the complainant.

I can only repeat my earlier comment:

> There have been any number of attempts to shift this burden, but I am
> not aware of any that has actually increased innovation or creativity
> in any way.

Karen

On Tue, Jun 1, 2010 at 8:42 AM, Michael Dickson <mike.dickson at hp.com> wrote:

> On Mon, 2010-05-31 at 15:07 +0000, Karen Palen wrote:
> > This is the last post from Lillith Heart that made it to the
> > opensim-user list so I will respond to this one.
> >
> > What Lillith seems to be advocating is converting Second Life and
> > OpenSimulator grids into some sort of "There.com" clone where all
> > sales are "vetted" by the grid management.
>
> Wow, that's quite a leap from her actual comments.  I don't think she
> advocated anything (which was a shame) other than that grid owners be
> sensitive to content creators.  Personally I'd like to see more of a
> dialog from content creators on what sort of solutions they'd find
> acceptable.  At a minimum I believe (and past history would seem to
> support it) that grids providing publicly accessible services need to
> provide a mechanism for reporting illegal use of copyrighted content and
> when reports are filed investigate and handle them. And yes this costs
> money. It's a cost of doing business.
>
> <snip>
>
> > In short unless the "injured party" themselves provide the
> > identification of stolen content AS THE LAW REQUIRES, there is no
> > reason for authorities to assume this burden.
> >
> > There have been any number of attempts to shift this burden, but I am
> > not aware of any that has actually increased innovation or creativity
> > in any way.
>
> The legal responsibility runs both ways.  Yes, the injured party needs
> to provide proof of infringement.  And the service provider needs to
> handle reports diligently when they happen.  Past attempts to claim a
> service is just a pass through and that there's no responsibility for
> content therein have failed. The law recognizes service providers as a
> part of the transaction so grid operators need to consider how they wish
> to handle that responsibility if they're providing a publically
> accessible service.
>
> Mike
>
>
>
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