The Second Life® Brand Center vs. Bloggers

[ArminasX Saiman]

I've just finished scanning the overly lengthy new branding rules just announced by *that-company-I-am-not-sure-I-can-safely-mention-here*. There are several points in there that may affect bloggers, and many more that affect business owners. A few items of possible concern to us bloggers:

• "In the United States, always use a trademark notice symbol"
• "Always use a legible and reasonably prominent trademark attribution notice "
• "Always follow a Linden Lab brand name with an appropriate generic noun"
• "Use an appropriate generic noun after the Second Life or SL brand names"
• "Always capitalize and spell Linden Lab's brand names exactly as they are shown"
• "Do not use any Linden Lab logo, icon, slogan, or tagline."
• "Never modify, imitate, or register any Linden Lab trademark"
• "Never use any Linden Lab trademark in a disparaging or tarnishing manner outside the bounds of fair criticism or fair use"

Huh? Do I have to consult an attorney every time I mention S****d L**e in my blog posts? (Ooops! I just modified a trademark!) Is this for real? I have never heard of such extensive guidelines, and feel that these are highly restrictive rules to impose on our blogging community.

What do you think?

[Edward Pearse]

Something that may be of interest in a hypothetical way is in which various countries view the internet as a place of publication. While LL may say we want you to use XYZ if you're in the USA and ABC if you're in other countries, I'd hazard a guess that most of the legal advice they've received has little idea about the operation of legal systems outside the US (for those that are actually aware of countries other than Mexico).

In 2002 the Australian High Court made a judgement in relation to a defamation case which effectively said that even if an online article was published by an American company and the server was hosted in the US, the fact that they made it available to outside parties meant they were subject to laws in which it could be read. So by reading your blog, it's effectively considered to be published where I'm reading it, not where you're typing it.

More details under Dow Jones & Co. Inc. v Gutnick.

Just something else to ponder :-)

[Tymmerie Thorne]

http://blog.ericgoldman.org/archives/2007/06/commercial_refe.htm

My boyfriend found this link to referential use of brand names on things like blogs. Very reassuring. He seems like a pretty credible source. Maybe someone should think about interviewing him? (I would, but I don't know if he has a goatee.)

[Alex Fedotov]

The best article I know about the law and blogs is here
http://www.avivadirectory.com/blogger-law/
I hope it will be useful.

[JeanRicard Broek]

reblogs this from ~wOOt~

Mitch Kapor @ Metanomics 3-28-2008

This snapshot was taken inSl by JeanRicard Broek This work is licensed under a Creative Commons Attribution-No Derivative Works 3.0 United States License

But beware:

It is not clear if this photo is, or is not, a copyright infringement upon Mitch Kapor's IP rights or those of Linden Lab®, considering that this is an avatar, a skin, a piece of fashion, game content, some form of copyrighted, intellectual property owned by someone. This after all is not a picture of the real Mitch Kapor, but a picture of a picture of the real Mitch Kapor. Is there a difference then? Does virtual reality add another layer of law or complexity to everything? If so it will fail.

Now I will say I believe that since this was an advertised event and very public (thought staged within a game or owned platform (inSl)) that this photo is covered under "fair use" as would be any photo of a public speaker in real life.

Why am I being such a pain about all this, raising questions?

The topic of Linden Lab's ®, new/revised trademark policy was mentioned at the meeting and was ducked by Mitch, essentially saying he was aware of the issues raised. See Second Life® Bloggers Require Clarification by Gwyneth Llewelyn, but did not know the actual history she referenced. (really?)

Considering this man's history and the central ideas of content and intellectual property rights around which SL® has founded most of its success, I found his answer slickly evasive at best or shows real lack of governance.

My point here is:

• I will not refrain from taking pictures of the Lindens, or others inSL, nor their trees, sand or sky, all content created by Linden Lab.
• I will not put the registration mark after every mention of Linden Lab, Second Life or SL into my writings based on the fair use doctrine as it applies to use of copyrightsand trademarks as I understand it.

Here is my rational from US Copyright Office http://www.copyright.gov/fls/fl102.html

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

1. the nature of the copyrighted work;

2. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

3. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

FL-102, Revised July 2006

Regarding trademark's I must refer you to: http://www.publaw.com/fairusetrade.html (copyrited all rights reserved or I would clip it in full) There you will find specific references to many of the points in the new Linden Lab policies.

Oh damn I will clip just a piece under "fair use" Sue Me!

The Lanham Act permits a non-owner of a registered trademark to make "fair use" or "nominative use" of a trademark under certain circumstances without obtaining permission from the mark's owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification. Fair use or nominative use may be recognized in those instances where a reader of a given work is clearly able to understand that the use of the trademark does not suggest sponsorship or association with the trademark owner's product or services and therefore is not being used in a manner to confuse the reader.

Generally, the use by an author of a trademark in a fictional work to describe or identify particular goods or services, such as "driving in my Ford", "eating a Hershey bar", "playing with my Beanie Baby" will not be considered an infringement as long as the use does not confuse the reader with respect to who actually owns the trademark. Trademark law also permits an author of a non-fiction work to include content that is favorable and/or critical of a trademark owner's products or services.

Well now back to Mitch: from http://en.wikipedia.org/wiki/Fair_use and I quote:

A US court case in 2003, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.

The Electronic Frontier Foundation was founded in July 1990 by Mitch Kapor

Look me in the eye Mitch. How is Linden Labs going to change, build a new 3D Windows or 3D web OS, without becoming like Microsoft? If you add another layer of law and ownership to my life (ML) I will reject you and your world.

[Dusan Writer]

JeanRicard - Extremely incisive analysis. I've consulted with my lawyers on this. Thought a lot about it. And have also realized that the confusion over the overlap between the TOS and their protections under fair use leaves a grey area should they choose to exercise their right to ban or suspend accounts while trademark disputes are settled.

End of the day, the legalities isn't what makes me despondent, disappointed, and frankly unable to log into Second Life. I just don't want to be there right now. They show poor management and governance, a lack of respect and engagement with the community and content developers (including now the bloggers who are their most vocal supporters for the most part), and nothing close to clarity on what their plans are or mean.

As I said on my blog, I may not be out the door but I have my coat on. It doesn't mean I'd abandon the platform, but it's an attention economy and there's a lot of competition for my (or should I *our*) attention.

Suffice to say I'll be spending more time in the RealXtend booth and others at the VW conference next week.

It's not the legalities, it's how they've handled it, which shakes my confidence that they won't do something else to shake my clients' confidence. Which is fine - SL is a great platform for exploration and immersion, there's lots to learn, I'd simply take my business elsewhere.