Proceed and Permit

Looks like we have found Get A First Life’s (GAFL) strongest supporter – Second Life. OK, Linden Lab. A link in the footer of GAFL’s page asks for “comments or cease and desist letters”.

So Linden’s lawyer sent one.

But not the letter that anyone might be expecting. Rather than ordering GAFL to stop it provides a brief legal defense of the right’s of parody under US law.

Before anyone gets cynical about this ‘master stroke of PR genius’ that the LL folk dreamed up in their Dr Evil bunker, c’mon give them a break – it follows Linden’s long standing ethos of IP use and, best of all, it’s funny.

Here it is in full:

Ginsu Yoon Says:

January 21st, 2007 at 2:57 pm

This notice is provided on behalf of Linden Research, Inc. (“Linden Lab”), the owner of trademark, copyright and other intellectual property rights in and to the “Second Life” product and service offering, including the “eye-in-hand” logo for Second Life and the website maintained at http://secondlife.com/.

It has come to our attention that the website located at http://www.getafirstlife.com/ purports to appropriate certain trade dress and marks associated with Second Life and owned by Linden Lab. That website currently includes a link in the bottom right-hand corner for “Comments or cease and desist letters.”

As you must be aware, the Copyright Act (Title 17, U.S. Code) contains provisions regarding the doctrine of “fair use” of copyrighted materials (Section 107 of the Act). Although lesser known and lesser recognized by trademark owners, the Lanham Act (Title 15, Chapter 22, U.S. Code) protecting trademarks is also limited by a judicial doctrine of fair use of trademarks. Determining whether or not a particular use constitutes fair use typically involves a multi-factor analysis that is often highly complex and frustratingly indeterminate; however a use constituting parody can be a somewhat simpler analysis, even where such parody involves a fairly extensive use of the original work.

We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com/ constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.

Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.

In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.

Notwithstanding the foregoing, it is possible that your use of the modified eye-in-hand logo for Second Life, even as parody, requires license from Linden Lab, especially with respect to your sale of goods with the parody mark at http://www.cafepress.com/getafirstlife/. Linden Lab hereby grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo (as displayed on http://www.getafirstlife.com/ as of January 21, 2007) to identify only your goods and/or services that are sold at http://www.cafepress.com/getafirstlife/. This license may be modified, addended, or revoked at any time by Linden Lab in its sole discretion.

Best regards,

Linden Lab

Comments

[Dan S]

1.

That will teach them!

[Prokofy Neva]

2.

Oh, I'm definitely cynical and sneering at this one. On the one hand, yes, it's great that FINALLY some sophisticated parody of SL has come along with good graphics and a good gag line that everyone can understand, in and out of SL. I was really glad to see that. Of course, the "get a life" meme is one that forum harpies have been screaming at each other for years, so it wasn't as funny. Still, I await the arrival of the SL SNL that can parody SL and LL themselves with near desperation.

I do my own parodies of course,
http://secondthoughts.typepad.com/second_thoughts/2006/09/hackers_hid_in_.html

as does some Herald authors:
http://www.secondlifeherald.com/slh/2007/01/the_cappuccinos.html

but they are inside jokes and not as funny. (I actually think my tag line for the fake news agency about SL, "We can't put it together...but we can take it apart", a riff off the old Whole Earth Catalogue line conceived by Stewart Brand, about sums up the entire reverse-engineering hackeresque ethos that reins in SL, but that's just me.)

But what MY beef with this "proceed and thrive" stuff is how patently fake it is, as if these people at LL are liberal, tolerant, and laissez faire about free speech.

Here, Ginsu Linden goes out of his way to write these parodists a letter to be funny and josh them about use of the logo, but if someone uses the hand-eye logo on a t-shirt within the world of SL, they'll be told to take it down. In fact, do you know that there are merchandisers who have signed NDAs with LL to make use of their hand-eye?

So to create this hype around the Lindens that they are these free-speech lovers is INCREDIBLY FALSE. They most certainly are NOT. They have banned me and others over nothing from their official blog; their forums; their townhalls; their listserves. All you have to do is question the received wisdom and not even criticize Lindens, so much as criticize their most loyal fanboyz, and you are out on your ass, with no due process, selective prosecution, and rampant abuse of authority. I've already written reams about how unjust and selective they are and how much they allow lower-level Lindens, who themselves were once residents, to settle scores unjustly.

You can try to appeal to their inhouse counsel Ginsu Linden about the insane selectivity, arbitrariness, lack of due process, and double jeopardy frequently involved in the Linden inworld discipline system, but he will remain stony-faced and not answer you, shucking you off to the "customer service department".

Ginsu and the rest of them talk the talk to be cool, to seem hip, to get posts like Ren just handed to them -- but they do not walk the walk. Do not be mistaken about this whatsoever.

It's yet another page in the book of creator fascism. We can allow freedom of IP. We can allow our image to be copied if we think your arch and special. We can't let you criticize our island policy or our new land policy, however, in public; for that we will boot you from the world:

http://secondthoughts.typepad.com/second_thoughts/2007/01/open_sourceclos.html
http://www.secondlifeherald.com/slh/2006/12/no_criticism_pl.html

I wish you folks could come in SL more often and actually see how this plays out. If you could, some of you could get indignant, and help be a part of ending these draconian policies like linking a permaban from the forums for speech to permabanning the world and stripping of assets.

To be sure, some of you would only intellectually bolster what they are doing, knowing of your views. But enough of you, if you got together and weighed in, could get this to stop. Truly, it's not the way the Metaverse and Web 2.0 should be.

[Richard Bartle]

3.

Prokofy Neva>if someone uses the hand-eye logo on a t-shirt within the world of SL, they'll be told to take it down

Surely the solution is to use the logo of Advanced Medical Optics?

Richard

[Verilazic]

4.

Lol, that was an awesome letter.

[Prokofy Neva]

5.

>Surely the solution is to use the logo of Advanced Medical Optics?

Hehe good one, Richard. Well, in my parodies, I've used the ancient Hand of Fatima, which of course, is where the Lindens swiped the meme in the first place, and I also mashed up a hand from some baby blanket company or something -- a baby's hand print -- with a mouth -- so instead of that precious "eye-hand-see-do" stuff the Lindens peddle, I had "hand-mouth" or "talk to the hand" etc.

[Aaron Delwiche]

6.

Prokofy,

You raise important issues about free speech and virtual worlds.

I'm wondering what you (and others reading this) think would be some constructive ways of organizing to enhance free speech rights in virtual worlds. There has been some talk in the past about an Avatar Bill of Rights. What else -- if anything -- can be done to organize an effective grass roots movement around these issues?

Just to clarify, my question is not about whether or not game developers have a legal right to squelch speech in the virtual worlds that they maintain. Past discussions on this list have established that the EULA gives near absolute power to the game developers. My question is: "Given the fact that game developers are legally empowered to restrict speech in their virtual worlds, what steps might users take to organize others around these issues? What specific recommendations and principles might be enshrined in a platform for a virtual worlds free speech movement?"

It would be nice if we could focus specifically on what free speech advocates think that virtual world companies *should* be doing.

[Andy Havens]

7.

Aaron: Free speech advocates should be doing what they always do (when they do what they do do best) -- advocate that whatever tools, media and platforms are available not be restricted by political, social or economic interests at the expense of free speech itself.

Here's the problem: free speech advocacy is itself a social and political and (sometimes) economic interest.

Let's say I publish a blog. Which I do. I want to speak through it. Which I do. I have lots of "free speech" rights related to what I can say there, and some responsibilities regarding not breaking various communications laws (don't infringe copyright, slander, etc).

Now... you also have the same free speech rights I do. Does that mean that I need to let anyone you publish from my space? Or even that I need to leave comments turned on so that you can respond to my posts?

Put similarly, does the publisher of a virtual world have, as an entity, fewer free speech rights than you do?

It is generally understood that someone who makes a medium available for public communication assumes certain responsibilities vis-a-vis the law, and that includes free speech, but not *all* speech. If a bulletin board is put up in the lobby of my church for the express purpose of announcing events and personal items for sale of church members, the church would be hard-pressed to keep a member from posting a personal item of one parishioner based on "bad taste" or some such fuzzy reasoning, unless it violated clear, previously posted rules. On the other hand, if the board had been set up only for events, and was only kept up by staff... there's no reason why anyone else's messages couldn't be summarily removed.

If I build a VW that's expressly set up to hard-core role-play a Renaissance English setting... why the heck shouldn't I be allowed to boot off people who want to loudly shout in public channels, "George Bush is an a****le!" or "I love George Bush!"

Don't get me wrong: I love freedom of speech, press, religion, assembly and all that. I'm a Bill of Rights nut. But I also believe it applies to the publisher of the game/world, and that "freedom" doesn't always translate to "complete license."

My brother worked in a Renaissance faire for a couple summers. While in character, you had to stay in character. If you screwed up and started dropping 20th century anachronisms often enough, you got fired. His freedom of speech stopped where his employer's freedom to serve up a good entertainment experience began.

[Aaron Delwiche]

8.

Andy -- Great points. Your analysis highlights the ever-widening gulf between social virtual world platforms and more traditional game-worlds.

Returning to the issues raised by Prokofy, if one views Second Life as a game-world in which the developers strive for immersion and coherent thematic user experience, the analogy to the Renaissance MMO makes complete sense.

If one views Second Life as a three-dimensional version of the web, it becomes more of platform than a game. This would lend itself to a common carriage approach in which the provider is "both obligated to carry speech regardless of content and legally protected from the content of that speech." (See: http://www.jerf.org/writings/communicationEthics/node5.html).

As someone who shares your interest in free speech, I would personally favor more of a common-carriage approach in which the provider (Linden Lab) does not interfere with the ways that people are using their tools.

I'm sure our legally inclined colleagues will remind us that (a) virtual worlds are not treated as common carriers, and (b) most ISPs have managed to escape being treated as common carriers.

But, I'm more concerned with what a free speech movement in social virtual worlds might pursue as its ideal goals, rather than assessing the current status of the law. (Though a reality check about current legal understandings is always very helpful.)

Is calling for the application of common carrier principles a reasonable approach to the preservation of free speech in platform-like virtual worlds?

Such a principle would probably lead to the conclusion that a company such as Linden Lab is justified in banning certain types of speech from its corporate forums, on the company site, but not justified in banning speech from its virtual world platform.

What do others think?

Aaron

[Prokofy Neva]

9.

Aaron, people already organize around this and do all kinds of protests and such, and there is even one person exploring the possibility of opening an ACLU chapter in SL. It's not true that companies can expect to enjoy EULA protection forever. If they open-source the viewer, especially, and have free accounts open to the public, they are no different than the Mall of America, Inc. which found itself targeted by lawsuits.

Someone who doesn't have anything to lose in SL should sue Linden Lab. The problem with those who would like to bother with this, is that they Lindens can remove them "for any reason or no reason" under the Terms of Service they have now.

I think at this point, all one can do is keep a crime file, document what goes on, counter it, challenge it, run alternatives, and wait to see when a large corporation with deep pockets and a willing litigator in a famous law firm with huge media coverage can really break up this little tea-party.

From my experience, much of the free-speech cases, if they aren't related to actual severe obscenity, let's say, or incitement of hatred, are simply contrary to LL's own business interests. Like saying that Aimee Weber's name is "like" a prom-queen's name. That sort of thing.

I think that LL already perceives of itself/calls itself a common carrier, but still hides behind the EULA.

So much of this has already been hashed at length on Raph's blog it's worth going there to read it all.

[Aaron]

10.

Prok,

I realize that people organize around this already, but it seems that we all keep reinventing the wheel every time the subject comes up. I'm wondering if there has been an effort to develop a coordinated statement of principles that go beyond tactical opposition to specific infringements of free speech.

Can you put me in contact with the person who is starting the ACLU chapter in SL? I'd like to pass his or her name on to the student who expressed interest in these topics. If you don't want to post the details here, feel free to e-mail off-thread.

Aaron