Xstreet SL Commerce Guidelines

Alas, because I have way too much to get done, this has to be just a short post.  But this recent post from New World Notes caught my eye -- Xstreet, which is a sort of Second Life virtual eBay, has issued some very interesting guidelines (see here, here) about the rules of Second Life commerce, at least such commerce as is listed on Xstreet. 

Here is an excerpt from the branding guidelines for Xstreet listings:

Branded items may be listed or sold only by the brand or intellectual property owner or its authorized agents. A "branded item" is an item that:

    * contains or uses a brand name or logo;
      
    * replicates or closely imitates the appearance of a real-world physical product of a brand owner (for example, items that replicate the appearance of brands of cars, jewelry, or shoes that are available in the real world);
      
    * replicates or closely imitates the appearance of a celebrity, famous person, or fictional character from a copyrighted work (for example, avatars that replicate the appearance of movie stars or characters from a book, film, television program, or game); or
      
    * replicates or uses an artistic or creative work that is the subject of copyright (for example, virtual artwork that replicates artwork available in the real world or a sound clip that includes part of a song recording).

So, e.g., as Wagner James Au points out, the Barack Obama and Angelina Jolie avatars currently listed are a no go under the new policy.

Since I co-wrote an article about the potential for trademark infringement in virtual worlds (and Second Life sneaker sales in particular) I can't say I'm too surprised by this policy.  Yet, at the same time, it seems to me that these rules reflect a fairly aggressive approach to IP policy. 

The law of brands is primarily about protecting consumers from confusion about the source of the goods they are purchasing.  While I think that most consumer protection policies can and should map onto Second Life generally, I'm dubious that anyone would be confused into thinking that a Barack Obama avatar was an avatar endorsed by the president.  And I can easily envision situations where First Amendment rights, as well as Second Life community norms, would come into conflict with these guidelines.

At the same time, I understand where Linden and Xstreet are coming from.  Given the uncertainty about many areas of IP law, most service providers ending up setting similar policies that prohibit certain kinds of user-generated content.  To the extent the new guidelines mirror these pro-IP norms, I suppose Second Life is growing up... and becoming less interesting.

Update: Like I said, this is a short post, but in response to the first comment, I guess I should clarify that the Obama and Jolie avatars are potentially brands, but are generally protected instead (in the United States) by a body of state law called the "right of publicity" that has its roots in protections for personal privacy.  (I taught a law school seminar about it not too long ago.) As the first commenter notes, the boundaries of the right of publicity can come into contact with First Amendment protections, meaning that the Obama avatar should raise stronger concerns about rights to free speech.

My point, though, is that the Linden/Xstreet policy doesn't have this kind of nuance, and seems to conflate the right of publicity (and copyright) with brand protection.  Confusing these is common enough on the street, but the end result of making that confusion into a listing policy for SL is an expansion of existing IP rights in the virtual world.

There is much more to be said about this, but I've just got too much to get done at the moment!:-\

Comments

[Michael Buckbee]

1.

IANAL (and all that), but I'm pretty confident that Barack Obama and Angelina Jolie fall into different legal categories.

Politicians are considered to be public figures while celebrities retain rights to their likeness.

There was actually a lawsuit about this when the Governator took office and crossed from being a celebrity to a public official.

[Robert Jones]

2.

Thats like saying I am unable to draw political cartoons using a politicians likeness...

How does this apply to people from different countries? US Law is only valid in the US....

[Robert Jones]

3.

I just had a quick look on Xstreet and it seems like they should have a lot less listings shortly as most breach these new guidelines especially gestures. Type any famous persons name into the search and you can find something :P

That and all the clones from video games like Halo avatars, assassins creed etc.

In one way it will be good for people who are selling original items but it also will reduce the total numbers of choices. I do notice the brand copied items are normally premium as they charge more for branded things rather than generics so this may be good also to stop the price gouging.

[greglas]

4.

We'll have to see how serious they are about enforcement of these guidelines.

Wrt international law issues, copyright, trademark and other forms of IP are generally subject to international treaties that can extend protections across borders. The "right of publicity," however, is a newer and less clearly established right.

[Zobeid Zuma]

5.

I have to make an important observation about the 1st Amendment and "freedom of speech" protections. Originally, like all the Bill of Rights, this was only a restriction on the power of the US federal government. This is reflected in the wording, "the Congress shall make no law". The US govt couldn't dictate what people could or couldn't say.

Ever since the Civil War and the 14th Amendment, this has also applied to state governments. Thus, the State of Texas (where I live) can't dictate what I can or can't say, nor can any subsidiary arm of the state do so, which includes city governments, public schools, etc.

However. . . My employer *can* tell me what to say or not say. At least, he can if I want to remain in his employ. The Bill of Rights is a protection against the power of government, but it has nothing to say about agreements between non-governmental parties. The same principle applies to the terms-of-service agreement between a SL user and Linden Labs. LL can restrict what you are allowed to do on their service in any way they see fit, and you can love it or leave it.

The only way this state of affairs might be challenged is if LL were declared to be a "common carrier" like the phone company, who merely provide a channel of communication for their users, or if Second Life were considered to be equivalent of a "public space", such as a mall in real life. (I.E. it's private property, but it's open to the public and therefore the public has certain privileges.) Neither of these situations have been established for Second Life, nor I think are likely to be anytime soon.

[greglas]

6.

Hi Zobeid --

Yes, that's all very good.

The First Amendment would come into play if a private party were to attempt to use a federal or state law (e.g. trademark or the right of publicity) to curb the speech of another private party. So the First Amendment actually does place limitations on the scope of federally-granted private rights.

Regarding contractual limitations on speech and the intersection between private property and the First Amendment, you're correct that the scope of the limitation is considerably less in those cases, even in instances where parties are looking to the government to enforce their private rights.