[Opensim-users] Correcting some errors

[Karen Palen]

Note the new email address - yhaoo now flags my outgoing mail as spam! Maybe
they know somehting I don't,[?] but I am switching my email accounts to Gmail
anyway!

Karen


Well it is fundamental enough that I think I should reply on list.

Unfortunately is is not a simple question so the answer is long. I have
labeled my conclusions as "The Bottom Line" if you just want to read that,
just don't gripe about the conclusions if you haven't read the rest!

Essentially there are two "doctrines". One is from copyright law in which
content is "licensed" for specific uses by the copyright owner, right to
play a movie or reprint a book for example.

The other is derived from patent law in which the owner has a limited right
to "make use or sell" the invention - and (historically) assumes that the
"invention" is some tangible object like a printing press.

Presently we in virtual worlds are in the business of selling things which
are "neither fish nor fowl"! Things like "virtual objects" and "software"
are not "works" in the sense of copyright law since they have a useful
function, on the other hand they are not tangible objects like a printing
press.

As a result it is unclear just what a "first sale" really comprises, even
less clear is how "fair use" should apply. In addition copyright law has
traditionally allowed a "scholars exemption" by which anyone can make a
single copy of a publication for study. There are also a huge number of
other issues which are simply beyond the scope of this text.

If these things are really "objects" then first sale would apply, if they
are merely works then "fair use" would apply.

For various reasons (not entirely greed BTW!) sellers of "software" and
"virtual goods" claim that neither doctrine applies and that only
"licensing" for specific purposes is valid.

Part of the problem is that if you ever voluntarily "give up" (or disclaim)
a right then you can never reclaim that right. No one really knows which
rights will be important in the future so the prudent thing to do is claim
ALL rights!

This is where many of the absurdities of present day practice arise, things
like claiming that "ripping" my own (legally purchased) CDs to my own MP3
player is somehow unlawful.

The entire situation with "backup" copies of software is another example.

The question of whether "first sale" or "fair use" applies to virtual goods
has not been addressed by the courts as far as I know. As a result the law
is essentially silent on this issue! This is a common situation in many
areas of law and one in which lawyers actually earn their money!

I am not aware of any thing in the current Second Life TOS which would
restrict products which *I* have made and sold to being used only within
Second Life by the purchasers!

It is possible that some implied contract could exist between seller and
buyer (source of many incredibly long and useless "purchase agreements"),
but without that then the law is again silent.

Certainly in 2007 and 2008 there was no such thing if only because no one
thought it could happen!

In the US the law is that you can do whatever you want unless there is some
law to say you cannot! That is not so in most other countries BTW!

That means that there is and always will be a huge "gray area" in the law
where no statute ("black letter law") or judges decision ("case law") exists
to tell you exactly what you are allowed to do or not do!

The "gray area" runs the entire spectrum from "very dark" (probably
unlawful) to "very light" (almost certainly OK). In practice almost nothing
is totally "black" or "white"!

One of the most important tasks of a lawyer is to figure out where a certain
set of actions (facts) fit into this spectrum, provide guidance to their
client as to the best way to proceed, and then back up that advise with
their malpractice insurance!

IP law for software still has a lot of unresolved issues, the concept of
virtual goods has far more!

To a large extent this is due to the fact that there is very little
experience to tell the courts or the legislatures just what the effects of
these issues really are. To some extent this is because neither body really
understand the issues or even the concepts involved, although it is
surprising just how much the best of these bodies really DO understand.

A review of the US Supreme Court decisions (on-line) will quickly illustrate
what I mean. The language is surprisingly readable and considers a huge
range of issues.

One of the most far reaching decisions ever was Roe V Wade:
http://en.wikipedia.org/wiki/Roe_v._Wade#Supreme_Court_decision

Reading the actual text and attempting to refute the justice's arguments
quickly reveals the depth of their understanding of the underlying issues:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113

Whichever side of the argument you support, it is really hard to find fault
with the arguments raised there. No one has actually found an argument that
has persuaded the courts despite nearly 40 years of intense effort!

There are certainly similar decisions coming in IP law concerning software
and "virtual goods".

The "Bottom Line"
-----------------
DISCLAIMER: THIS IS NOT LEGAL ADVICE, BUT IS EDUCATIONAL MATERIAL BASED ONLY
ON MY GENERAL KNOWLEDGE OF THIS AREA OF THE LAW!

CONSULT A LAWYER TO SEE HOW THIS APPLIES TO YOUR SITUATION!

There are some things that carry over from "real products" very well - if
you copy someone's furniture that they are selling in SL and then resell
that furniture without permission you can expect harsh penalties, possibly
even jail time!

If you make a backup for your own use and DO NOT "share" that backup with
anyone else then you will likely not be penalized.

Moving (not merely copying) something from Second Life to ONE OpenSim grid
likewise should be allowed.

This still leaves many questions where really no one knows the answer.

"Abandonware", that is a "work" where the owner/author cannot be found. The
typical solution in a commercial setting is to set aside an allowance for
later discovery of the owners AFTER a genuine and "diligent" search has
failed to find them. This does not always work however

Google is currently dealing with this problem in their project to add most
books that are no longer in print to their search engine.

Moving free stuff to OpenSim or to SL (or the reverse). Unless the creator
has explicitly forbidden this then there is no restriction implied. Many
things which are free in OpenSim are for sale on Second Life and come with a
caveat that the free version never be moved to Second Life for example.

DRM (including Second Life DRM) legally is merely an indicator of owner's
intent when the restrictions are placed by the creator. Often the
restrictions are just a result of repackaging defaults or re-packaging free
goods for some promotion. In this case you would be free to move the
original items, but not the package.

In short the courts generally use a "reasonable person" standard - what
would a "reasonable person" do in this situation. The problem of course is
that "reasonable" is determined by the judge maybe many years after the
event!

I hope this clears up some of the problems, it is a complex situation.
However fervent claims by content creators (or others) really count as
nothing more than "screaming and shouting" or "bullying"!

Karen

--- On Sun, 2/28/10, Michael Cortez <mcortez at gmail.com> wrote:

> From: Michael Cortez <mcortez at gmail.com>
> Subject: Re: [Opensim-users] Correcting some errors
> To: opensim-users at lists.berlios.de
> Date: Sunday, February 28, 2010, 3:09 PM
> From: Karen Palen <karen_palen at yahoo.com>
> > That is not piracy, the legal doctrines are "fair use"
> and
> > "first sale" if you care to research them, Wikipedia
> does a
> > fairly good job of explaining them and I will look up
> the
> > case law if you really want.
> >
> > The content that I am moving from Second Life to MY
> sim are
> > one or more of these:
> >
> > 1) Stuff I built myself
> >
> > 2) Full permissions under SL DRM system (when
> purchased or
> > obtained that way)
> >
> > 3) Moved with the explicit permission (sometimes at
> the
> > request of) the creator.
> >
> > I add the caveat to 2 above since about half of my SL
> > inventory is now "full perm" due to a Second Life
> database
> > glitch that reset the all of the permission flags. ALL
> of
> > that content remains on SL only!
>
> I am somewhat curious about your opinion on the argument
> that the legal doctrines of Fair Use and First Sale don't
> actually apply to content in Second Life because you are not
> actually purchasing a tangible good.
>
> Rather, some argue that you are purchasing a license for
> the use of content within the framework of the virtual world
> -- where within that framework you are licensed the ability
> to optionally Copy, Transfer or Edit the content.
>
> Therefore, because you have not actually purchased a good
> and the license specifically applies only to that virtual
> world, transferring or otherwise using the content outside
> of that framework is a violation of your license.  The
> analogy being, electronic purchase of a license to use
> software (such as Adobe Creative Suite [Photoshop], or Turbo
> Tax) where that license generally permits you to install the
> software on a limited number of computers, and does not
> permit you to resell, give away, or otherwise transfer
> ownership (of the license or the product.)
>
> When I first heard this argument, the person promoting it

> backed it with verbiage from the Linden Labs' Second Life
> Terms of Service where it indicated that creators of
> software were *licensing* their content for use *within* the
> system.
>
> Now of course, purchasing products outside of the system
> via the various websites complicates matters -- because
> those sales don't take place within the system in the first
> place -- but the products are delivered within that system.
>
> Feel free to reply off-list, as I'm not going to delve much
> into the argument -- just curious since you indicated that
> you "DO know something about IP law."
>
> --
> Michael Cortez
>
>
>
>
> _______________________________________________
> Opensim-users mailing list
> Opensim-users at lists.berlios.de
> https://lists.berlios.de/mailman/listinfo/opensim-users
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://opensimulator.org/pipermail/opensim-users/attachments/20100301/ade0caef/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: 330.gif
Type: image/gif
Size: 96 bytes
Desc: not available
URL: <http://opensimulator.org/pipermail/opensim-users/attachments/20100301/ade0caef/attachment.gif>