Second Life as a Virtual World

• Second Life (SL) is a virtual world, similar in design and nature to a computer game, with users navigating the world through the aid of avatars.

• Founded by Linden Lab in 1999, it enables users to create their original creations.

• A major milestone occurred in 2006 when SL collided with real life through the program CopyBot which cloned designs in the virtual world by analyzing streams of data being received by user’s client, thereby causing a violation of copyright.

SL, Copyright & Commerce

In the virtual world of SL, users require Linden dollars to purchase goods, and/or visit places of entertainment. Players who join a premium version of the game receive weekly allowances for a fee, while others may convert real USD into Linden dollars. Such conversions take place on the foreign exchange of SL or through outside exchanges.

Linden Labs creates incentives for project developers - anyone who manages to create a popular area is entitled to compensation, and anyone who creates an original and new figure, character, region or product may sell it for Linden dollars.

Commerce and Pop Culture on SL

The SL economy extends beyond businesses created in it’s realm, and such companies as Adidas, Toyota and numerous technology companies have a presence on SL.Media outlets also

have a presence on Second Life including Reuters, Wired, CNet and BBC.

Copyright Theft on SL• Copybot is a software tool that subverts the SL virtual-world

system to copy in-world objects.• Copies, imitations and forgeries on SL are akin to theft in the real

world. The CopyBot controversy caused the value of many goods to drop, in turn causing a drop in the value of Linden dollars.

SL Terms of Service:“You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.

• While Linden Labs provides residents with ownership rights for the content they create in-world, it does not enforce or adjudicate copyright disputes, thus it was unprepared for the CopyBot crisis.

CopyBot Crisis

• The Copybot crisis taught SL a tough lesson on why commerce’s direct relationship tocopyright issues on SL are imperative to users.

• Users create goods to sell on SL, so copyright infringement represents a loss of income, just as it does in the real world.

Focus on virtual duplication of works

• How should the duplication of works in SL be monitored?

• Should real-world rules apply, with the choice of law determined by the location of the users, hence apply the territorial principle?

• What laws protect these works and what extent of these laws ought to be based on actual laws? Remember, one of SL’s unique features is the potential for commercial exchanges, thus the protection of it’s economy vis a vis copyright protection is critical to it’s prosperity.

Academia in SL

Since it became popular, SL has witnessed an influx of scholars who have researched various topics such as whether the height of an avatar affects the user’s online and offline aggressiveness.

However, few scholars have embraced SL’s valuable legal research opportunities, including whether we should consider SL a separate and distinct jurisdiction, and if so, it appears that we have the possibility of developing an optimal copyright law, based on real-world laws’ successes and failures.

Varying models of Copyright protection

• Creating copyright law for SL based on a broader use of the American definition of the defense of fair-use, thereby limiting companies ability to prohibit users activities.

• Adopting the discarded U.S. Supreme Court ‘sweat of the brow’ doctrine; the rule that one’s effort in compiling material can make the material eligible for copyright, or to provide for the ‘moral right’ to control use of one’s work, which many jurisdictions other than the U.S. currently recognize.

• Altering the length of copyright protection, making it possible, within limits, for the creator of the copyrighted material to determine the duration of the copyright.

• Basing a system in which SL would charge Linden dollars for each month of protection.

Effect of Copyright owners behavior on

copyright Law• The internet has fostered a thriving subculture of information sharing.

Even the most rigorous copyright laws can be made more lenient in practice by the behavior of copyright owners.

• As John Perry Barlow, a lyricist for the Grateful Dead astutely argued, the band promoted itself by giving away it’s music - that is allowing bootleg tapes without limitation - and charging for tickets, as fans want the value-added of a live performance. So too, Barlow argued with online material.

• SL provides an apt example of this, when in 2007 a parody website www.getafirstlife.com was launched and Linden Lab responded by acknowledging the parody, and stating that as a company known for enlightened and well-informed views regarding IP rights, including the doctrine of fair use, open source licensing and other principles that support creativity and self-expression, we know parody when we see it.

• The law may opt for a stricter copyright law in light of the ease to make precise copies, almost instantly and disseminate them widely on the Internet. Or the law may permit private parties to do more to protect themselves, “private fences, not public law”- promoted by a leading legal theorist on Internet law, Lawrence Lessig.

Private Fencing & Copyleft

• One form of licensing, private fencing, expands the use of a work by its admirers, by reducing transaction costs as licenser and licensee no longer will need to contact each other and negotiate the terms. ‘Copyleft’ licenses, for example provides free software, which users may modify in any respect. The only rule however is that the user must make the modified version available for free, and cannot sell it.

• Creative Commons offers a similar license.The creator of the work may choose one of the license, fill out a short form, embed a Creative Commons button on the webpage and people interested in using the material may click on the button to see what is permitted. Licenses may, for example extend to nonprofit uses.

Dominant License Forms

• Licenses are frequently used to limit rights, and on one extreme side of the spectrum, they may create privatized realms of law, defining by the licensers rather than by legislators that is stricter than real world statutes.

• End User License agreements on computer software and click here to proceed buttons on web-pages are examples of contracts of adhesion, which the user cannot negotiate, thereby limiting their access to the copyrighted materials.

• How can licensing apply to SL? It may be a condition of entry into this new IP jurisdiction, users would then agree to be bound by a set of rules in place in SL. If they violate the rules, they can be kicked off, as is the case with many ISPS and websites.

How can we protect creations on SL?

• Copyright protection generally views the artistic elements of form and structure, often referred to as the ‘look and feel’ of the program to be bound by the rule that denies protection to expression or design which is rudimentary and generic.

• Thus, CopyBot would be held to be a violation of copyright in most respects expect for the duplication of rudimentary and functional elements.

• Perhaps if we look at SL as a world onto itself and treat its figures and products as authentic for legal purposes, we can develop better copyright laws.

SL as Reality

• Assuming that a copy of a figure, an article of clothing and any other creation on SL is not a duplication of a computer code but rather an actual copy of an actual product then such duplication would be subject to the copyright laws of the relevant jurisdiction. Within SL these items are perceived as real products and thus, for a moment, let us treat them as such. Accordingly, developing copyright laws for the virtual world requires us to bear in mind the values of the items to be protected.

• The moral right doctrine of copyright, recognized by many nations but not by the UN may well protect the creator of a SL character, including what is determined to be the right to paternity, which protects a creator’s right to be known as the creator of his or her work. However, one may argue that broad protection is inappropriate in SL because duplication is not likely to cause participants to stop creating characters. Thus, prohibiting users from copying images may not be the best way to preserve creativity in the virtual world.

RL Copyright Protection for SL Creations

Avatars – Should Avatars be considered to be more than a mere costume or items of clothing; rather as fictional characters?

The US authorized the copyright of a well-developed fictional characters as separate from the works in which they first appear. Thus Disney’s copyright over characters such as Mickey Mouse and Goofy extend way beyond the works in which they have appeared.

Fictional characters in SL are composed of mixed characteristics, visual features, names combined with the Users behaviors. Does an infringement occur if only one element of a figure is copied- for example the visual element?

RL Copyright Protection for SL Creations – cont.

Buildings – Architectural works can by copyrighted, but not

individual standard features of a building.

Clothing – An article of clothing is a “useful article” under the law and therefore does not usually enjoy copyright protection. Attempts by designers to obtain protection have generally met with refusal so that other fashion designers and creators would not be unreasonably restricted in their creations. On the other hand, when designs are printed or painted on the material, an artistic work has been created, which benefits from copyright protection. SL clothing, has no function, SL avatars do not require clothes therefore SL clothes may well be considered an artistic work.

RL Copyright Protection for SL Creations – cont.

Furniture – the law provides that pictorial, graphic, and sculptural works can be copyrighted. This includes a useful article, only if and to the extent that such designs incorporate pictorial, graphic or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article. Thus furniture designs incorporate artistic and nonfunctional aspects, and can be considered a work of art suitable for copyright protection.The main reason that clothing and furniture are provided with less copyright protection is that they are principally ‘useful articles’ under the copyright law. The relevant question is whether these products in SL can be said to possess a functional attribute.

Unique Characteristics of SL

• Many participants in SL are creators. • Many participants support the same values of innovation

and creativity, and wish to enjoy creative freedom and open access to works, but want some form of protection against duplication.

• Inventiveness and creativity arise mainly with derivative creations.

• SL users import images from the real world into the virtual world.

• All landscapes, figures, buildings, items, clothes, jewelry, and property are basically computer code. As such, duplicates of these items can be identical to the originals.

• To a large extent, SL is a collective work made by all of its participants. There are no owners of this intellectual-property work as a whole.

• Most of the works and properties cannot be removed from SL.

An example from another world: French Cooking:

• The idea that the virtual arena of SL should be allowed to develop without the intrusion of strict western copyright laws is not farfetched.

• Emmanuelle Fauchart and Eric von Hippel recently studied the manner in which French chefs protect recipes that they devise and prepare.

• A recipe that appears in a book can be partially protected from duplication but not from “performance”. Otherwise, copyright and patent rights are almost nonexistent in this area.

• Fauchart and von Hippel discovered that despite the weakness of legal protection, leading chefs have developed strong rules to protect original creations. The rules are as follows:– A chef may not make an exact copy of a novel and original dish

conceived by another chef.– If a chef discloses to another chef an exact recipe, It may not be given to

others except with his express permission.– Members of the community must credit the original creator of the recipe.

Developing Copyright Laws for SL

• Discussion and Conclusions:• In order to determine what laws should govern copyright issues

within SL, we must understand the special characteristics of this virtual world as well as how the participants in the world perceive the values of creativity and innovation, free access to works, and protection of works.

• It may well be that SL members have their own ideas and would like to create intellectual property rules on their own terms, or that like the French chefs, many of them are doing so de facto by way of informal agreements or merely shared values.

• From this perspective, SL can be a laboratory for considering alternative policies in the real world. The virtual world creates options beyond the rules that constitute the basis of western intellectual property jurisprudence. SL provides the opportunity for, and perhaps the necessity of, experimentation in hopes of perhaps producing a more flexible approach than the stringent copyright laws that exist in real life.

• A possible solution can be taken from the example of the view copyright laws has on clothing and furniture. Similar to these objects, most creations in SL are not pure artistry, but combine artistry and functionality. Many creations, moreover, are derivative works, neither wholly original nor clones of existing creations, which are an integral part of SL. Most participants are innovative and creative, and they take inspiration from and borrow elements of other people’s patterns and designs for their own works.

• The virtual arena of SL much be allowed to develop without the intrusion of strict western copyright laws, in particular those of the US. Within this novel laboratory, the opinions of the participants should be taken into consideration as should the special characteristics of this unique world. These characteristics might lead to a different set of rules to protect intellectual property, just like the French chefs have created.

Framework of SL Copyright Law