Do SL’s IP Rights Infringe on Innovation?
If you don’t hear from me on Monday morning, it’s because I’m on my way to Supernova. In the meantime, I’ll leave you with the following hypothesis: Second Life’s innovative intellectual property rights regime, in which users are granted the IP rights in the things they create there, actually serves to stifle creativity in the world. Now, this is a bit of a straw man, I’ll admit. (I learned my screaming headlines from the best.) But it’s worth examining more closely, especially where it collides with SL’s technology.
The issue of trademark, copyright and intellectual property rights in the virtual world of Second Life has long been a contentious one. But it’s only recently that it’s leaked into the more mainstream reaches of the blogosphere. This SL forums thread, for instance, has been pondering the subject since October of 2004, and is still being posted to as of today.
For the vast majority of SL residents who consider the topic, the issue is one of technology. SL’s build interface allows residents to set copy permissions that — theoretically, at least — prevent others from copying their creations. But the copy perms are notoriously buggy in SL. Just because you set something to no-copy, it doesn’t necessarily mean it won’t be copyable. And since many of SL’s biggest content-creators make their real-world living from their activities in the virtual world, the theft of the objects and textures they’ve spent so much time on could have a substantial real-world impact. I’ve created this thing and own the IP rights to it, the argument goes, so why shouldn’t the technology behind the world protect me?
I’ll take up that question in a moment. First, though, consider the practical effect this state of affairs has had on SL. Two examples (one of which I have some culpability in):
A while back, I blogged about a user-created tool that let residents create 3D objects in Blender and then import them into Second Life. This is something SL users have been looking for for some time. But the people who wrote the tool stopped short of writing another app that allow you to export objects from SL. (Other tools can already do this, in some formats.) Why didn’t they write the exporter? Because they were concerned that people would use it to copy objects that weren’t meant to be copied. The way I read that is that the technology was held back in order to prevent a presumed theft.
Another group of SL residents is seeking to reverse engineer the SL protocol, cache and client. They’re not doing this in secret, their Web page is out there for all to see. And presumably, they’re not doing it for nefarious means, but because they’re curious about how their virtual world works, and want to be able to better understand and work with it. Over on SecondCast, our weekly newsmagazine podcast about Second Life, we’ve had some off-air discussions about whether we should mention this work on the air. The conclusion we’ve come to is that we shouldn’t tell people about it for fear that someone will use the information to steal proprietary objects and textures (which you can do very easily with the information on the site). Obviously, as you can tell from this post, I didn’t really agree with the decision (and you can believe I’m going to take a lot of heat for linking to the site here, despite the fact that is was blogged about recently elsewhere), but I abided by it for purposes of the podcast. Now I regret it. Why? Because that reads like we covered up some news, again in order to prevent a presumed theft. We nominated ourself as a little police force, when we were really only playing the roles of tabloid broadcast journalists.
I’m not comfortable with either of these things. People in one of the most creative places on the Internet are keeping secrets and not creating things? It doesn’t sit right. But I’d submit that it’s happening because there’s too strong a focus on technology as the solution to such perceived woes.
Why should the technology protect you? I mean, it would be nice if it did, but the laws governing copyright, trademark and intellectual property don’t guarantee you’ll be able to live in a world where the capability to infringe on those things doesn’t exist (unless you’re the RIAA). Instead, the law provides recourse in case such infringement has occurred. And it’s carefully designed that way in order not to stifle creativity, to allow people the greatest freedom in what they create, but to punish them when they take that freedom too far.
I recently posted a nice essay by the American Bar Association’s Henry Judy, in which he argues that such issues in the metaverse should be governed by the same laws that govern such issues in the physical world. Moet Hennessy Louis Vuitton doesn’t lobby that their leather-stitching machines are the only ones that should be able to produce the famous LV logo, after all — despite the fact that thousands of knock-off Vuitton bags are sold on New York’s Canal Street every year. The laws that Vuitton has recourse to, needless to say, don’t always work as well as they should. But they don’t discourage people from creating new technologies or talking about the ones that are out there.
Where’s the failure here? I’d say it’s probably in the courts. A commenter on Jeremy Pepper’s blog puts it this way: “So many messy copyright and trademark issues in the Web 2.0 world. . . . I guess we’ll need more lawyers who know how to boot up a computer. Historically, I’ve found them sorely lacking.”
But the courts may never get up to speed on these issues if the people who inhabit the metaverse don’t insist on it. If the focus remains on technology as enforcer of the law, then it will eventually be (as Lawrence Lessig has pointed out) the technologists who are writing the laws. Now, I’m all for technologists, don’t get me wrong. But we didn’t elect them as legislators, did we?
Robert Scoble writes, “I can see how this will end up in court sooner or later. Why? Cause trademarks must be defended or else the trademark owner loses rights to them.” And he’s right. But I think most SL residents don’t realize this. Relying on the technology is not a good idea; it’s not going to protect you. That’s neither its purpose nor its creators’ responsibility. If someone’s ripping you off and having an impact on your real-life income, take them to small claims court — because if that’s happening, you have a legitimate beef. Not only will it be fascinating to watch, but you’ll be doing your part to move the law forward. Above all, though, don’t let the technology stop you from making and sharing the things that keep the virtual world alive. Because a chilled-down metaverse in which people are unwilling to venture their creativity is not the kind of metaverse we want to live in, don’t you think?
Feeds
Such a challenging issue. Part of me agrees that the metaverse should be governed by the same laws as the rest of cyberspace (the Web, etc.) and thinks that there will probably be no other other option once the convergence of all things 3pointD happens. And there’s no question Trademark needs to be defended in the traditional manner. Of course I think we’re all aware that the products in the virtual world are different than those in the physical — making a knock-off of a Louis Vuitton bag still requires a capital investment, manufacturing, and some sort of supply chain. The barrier to entry is a bit higher than the virtual world where zero effort is required to make an exact duplicate of a product.
The other part of me feels the path Linden Lab has taken with SL has made the issue more confusing. LL walks a tightrope between being stewards of this new type of world and having to be a private company rushing to get to break-even and eventually profitability. In certain situations LL plays the role of government and in others (IP rights matters) it’s no more than an ISP.
The majority of LL’s PR is focused on the commerce of SL and the business of making real money in-world. Yet does the average SL user really understand what DMCA is? Given the threads I’ve seen over the past three years in the forums, people are, in general, clueless when it comes to copyright and trademark law. What users rightly fail to understand is that SL’s permissions system is legally meaningless. They’re has been talk of adding creative commons language to the permissions system, etc, but nothing has come of it (probably a wise move on LL’s part). So the real message is “come create products to enrich our (privately held) world, but if you want to protect your work you need to pursue your IP rights in a real world court of law.”
To your point, Mark, because the permissions system even exists, people feel the technology should protect their works. I guess my point is that LL doesn’t make it clear that the responsibility lies in the hands of the creators. Isn’t it a bit of a bait and switch? The LL Mining Company has sold us a plot on the frontier with tempting images of a new world, but we find out the hard way we need to protect our land from cattle thieves and claim jumpers. Oh and the LL Mining Company also runs the territorial government…
The technology *should* provide some baseline protections. Yes, the legal system is final recourse but if you want creators to invest time and energy, they need to feel like there is at least an initial barrier to theft, otherwise the only creators you will have are those who do it for love (which is great, but rarely scalable). Few small businesses have the interest or means to obtain a court order to get real-world identity information from Linden Lab, and then chase someone down in small claims court. Add the international aspect to it, and it gets harder.
A middle ground is needed, but that includes baseline technological protection to prevent excessively easy theft. Even with the GL vulnerabilities, some protection is better than none.
Addendum: Linden Lab did not try to build a world filled with content from corporations who can afford to defend themselves and their brands, even at a “local” loss (i.e. compared to Second Life revenue streams). Rather, SL was initially built by individuals and small groups whose revenue streams and time constraints would not really allow for legal defense of IP. It was thus practical and logical for LL to provide a baseline technological protection system, or their virtual world would possibly have never gotten off the ground. You are right, however, in pointing out that users cannot depend upon the technology as a failsafe safety net, or as anything that is tied to real world law.
One thing to point out here is the Linden Lab response to Jeremy Pepper: “In regards to copyright, Linden Lab follows a standard DMCA procedure by which we’ll disable any content identified by the copyright holder or their agent as infringing.” So actually, it would seem that small claims court isn’t really a necessary step, at least not at first.
I think a better protection from this kind of theft probably lies not in the technology but in building one’s virtual brand. There’s absolutely no barrier, after all, to copying a story from The New York Times’s Web site and pushing it off as your own. But the Times is so strongly branded that it doesn’t happen. Now, that’s an extreme case, but it’s pertinent. Promoting and protecting a product in Second Life is more involved than simply creating something and putting it out there for the community to enjoy. Perhaps a bit more branding and promotion would provide a bit more protection. Reputation is a powerful thing. Yes, it’s not scalable to expect a rich world to be built by people who are doing it only out of love, but neither is it scalable to expect that world to be built by individuals who aren’t equipped to pursue legal remedies. (Although there’s ostensibly a remedy in going to LL, as noted.) But my point here is that there are many things one can do to protect a product that fall short of the expense involved in going to court.
Scott’s point about zero-cost production is also a good one, but I’m not sure yet how it figures into the picture. It’s one of the fascinating differences between the real and virtual worlds. It will be interesting to see whether the courts consider this when they finally take up the issue. Provided there’s anyone in the judicial system who’s equipped to understand it.
Scott’s point about zero-cost production is a vital one. It is why even those simple barriers to theft are helpful, even if slightly, because it costs *nothing* to make duplicates.
In the real world, someone makes a knock off of a handbag. Well they still have to organize materials, labor (probably in another country), they have to handle distribution (ship it to the market country), and then sales (get it on those street corners) for a discount (no one is going to pay full price). You, me and Joe across the street are not goign to take the time to make a bunch of knock-off handbags. A lot of work and investment for unknown returns.
Take a digital product that was easily copied: chances are that the first penny you make is pure profit. Add anonimity. All of a sudden it becomes a little more enticing for the average Joe. Make something just a little bit hard and maybe Joe’s morality will catch up to him. Make it too easy… “hey, all information should be free right?”
You are correct about brand being a fundamental differentiator. There isn’t a single successful creator I know within Second Life who hasn’t had something copied. Most of them, after the initial shock, realize that it is a cost/fact of doing business in SL. Linden Lab cannot adequately investigate every protest/objection, and there is no better business bureau that has ever successfully made it out of the talk stage. So the more mature creators just focus on innovating and furthering their brand.
That doesn’t mean we should allow IP theft to be *effortless* if we can help it.
As more corporate brands come into SL, we might see more active control/protection of brands and IP. I think for many, understanding why IP is important is an awareness issue (i.e. it’s not whether they are a good or bad person). Maybe a few examples and more education will help. However, I’d hate to see a repeat of the record industry’s tactics.
IP theft isn’t going anywhere, and it is a waste of time to try to eradicate it through technical means. To many, it’s also a waste to try to handle it through legal means. A *combination* of the two, with a dose of education and calls for higher behavior, might lessen the problem enough that content creators continue to create content.
“Of course I think we’re all aware that the products in the virtual world are different than those in the physical”
Not entirely. The difference between real and virtual is quickly evaporating and is the reason I’ve been watching the PLM market for much of the past year. I could make an object in SL and manufacture real product from that baseline data (I’d throw on some fillets and rounds and - depending on process - some draft or a part-line). In the end, the information in a 3D file winds up as triangles - on your screen or on the shop floor.
“Of course I think we’re all aware that the products in the virtual world are different than those in the physical”
There’s less difference than most people realize.
There’s a powerful pressure on the Lindens (whose staff is made up one third of former residents with networks of close friends) to provide technological solutions rather than policy solutions to problems like IP. It’s funny, first it was Lawrence Lessign telling them that they should give IP rights to their residents who create using their platform, rather than hogging the rights to everything made on their servers with their software to themselves, now you’re coming along and invoking Lawrence Lessing to argue that creativity and technological advances aren’t served by having this copyright.
The most chronic, screeching drama to watch in SL usually involves somebody who has swiped a texture or picture or image off the Internet itself without any concern about theft, and then resells an object made with that texture in SL — and gripes when somebody else does the same thing. Or when a skin is copied by just taking a lot of photos and working them in PSP or whatever the technique is. People who aren’t billing for their hours, who are slaving away making tiny avatar clothing get REALLY cranky about anything that threatens their carefully-constructed revenue stream. So the Lindens promise them code-is-law instead of policy-is-law.
Lately, they’ve added a few more police blotter reports regarding trademark theft so they are mildly cracking down more but many “take-down” notices that people get lawyers to send go nowhere.
Another thing that fuels the copyright theft is the proliferation of freebies. Sometimes makers put these on “no mod” and “no transfer” which defeats the purpose of allegedly helping newbies learn but fulfills the true aim which is to enhance the maker’s reputation as a helper of newbies, and to get a loss leader out in the public eye to bring traffic to their stores. Those who get their wares on to Help Island are particularly notorious for this.
I think anyone putting out freebies should have them enabled to mod and transfer so that a newbie economy can thrive and yardsales, which are entry-level jobs, can thrive to enable people to start learning money while they learn how to make things. If you don’t want something copied, don’t put it on mod or transfer — but then SELL it. When there are more things for SALE instead of for free, the sting of the occasional copying will be less.
I just wish the whole Lessig gang would get it straight here on what they are preaching. Steal this book? Or sell this book? Steal this book if the book is from an evil big corporation? Sell this book with your own copyright if you are hip and punk? I just want the straight story here.
Is Second Life IP Issue More About SL’s Broken Economic Model?…
There’s seems to be contradiction about the IP ownership …
Prokofy -
Are the people who are making the legitimate original works items, textures, etc., bothering with proper copyright, trademark, or design patents?
At the beginning, middle, and end of the day, Linden’s technical measures are irrelevant except from a Terms of Service view.
If anything, part of the introduction to Second Life and using its content creation tools should be some education on intellectual property. When someone adds an item to the world, they should have to confirm that they have appropriate rights to the item.
Of course Lessig and co. make their money from their opinions, whatever their content. As seen with the recent Web 2.0 incident the most rabid open source advocates use IP law when it suits their financial interest.
I wrote about this a bit way back when on my blog:
http://secondlife.blogs.com/prompt/2006/02/opengl_copying_.html
It’s been pasted with comment spam since coming off the main page, cleaning it up now.
[…] So being busy with SL birthday organsation I unfortunately missed reading blogs or writing stuff. But things have moved on of course and so I at least want to mention one post by 3pointd,com. Mark is writing about IP handling in Second Life and about the question if it should be enforced by technology or not or if technology which possibly could circumvent the no-copy/no-trans switch should be released or not (speaking of an SL object exporter here). Well, I think the post is quite right at it’s conclusion. […]
[…] Mark Wallace over at 3pointD asked if SL’s IP Rights infringe on Innovation and an interesting discussion followed in the comments. Intellectual Property (IP) considerations have been at the heart of the discussions around SL and for good reason. Linden Lab did famously let residents retain IP rights over their creations which helped kick start this booming SL economy we’re experiencing now. […]
Cory said: “If anything, part of the introduction to Second Life and using its content creation tools should be some education on intellectual property.”
That would be fantastic, Cory, and it probably can be relatively brief with the appropriate links.
I also agree with you, Mark, that building a strong brand is the best hope for combatting IP theft in this situation — a strong offense, and all that. The total brand experience is what you want to sell, not just simply the product. The fact of the matter is that one has to worry about competition from legitimate sources as well. If you’ve got a popular product, unless you’ve got a patent, competition is inevitable.
Bringing the conversation back to innovation — I do think there are untapped, innovative ways for content creators to stay ahead of both the cheats and the competition. And I’m convinced the more open SL is to external tools and communication, the more opportunities will arise to allow for some really innovative stuff (it’s already starting to happen…).