Peering Inside: Linden Lab, the DMCA, and content

Linden Lab reports that it is putting more 'resources' on to DMCA duty to deal with improper duplication of content in Second Life.

This would be a significant improvement over reports of one person, not even performing the DMCA processing full-time. We don't think the new people will be full-time either, but more person-hours either way. Well, that's all assuming that 'resources' means people. Maybe it means the rumored part-time DMCA processor is now full-time.

Copying items has two different aspects to it. Possibility and Permission (or can and should if you prefer).

Possibility in the physical world - well that's easy. There's almost nothing that cannot be copied, given the time, determination and/or technology. Despite a host of security measures and the best technology that has been able to be applied to the task, the US government is having troubles with so-called Super Dollars, which are technologically superior to the original banknotes.

In the physical world, everything can be copied. Science, technology and ingenuity -- the very things that made the original work -- make it possible to do so. That brings us to permission.

Under current US Copyright law fashion works are denied copyright protection because they are "useful articles". Individual design elements might be copyrighted, and trademarks may be part of the design further inhibiting legal replication. Most other things are protected by law. Ergo, you do not have permission, except where explicitly allowed -- though restrictions are more easily bypassed for fashion works. You should not copy without permission. That is a matter of law.

In the physical world, you have the ability to copy everything, but you frequently lack the legal right to do so.

How does that all work in a virtual world like Second Life? Linden Lab only owns the digital representations within their servers and databases, which is on par with owning a book. The author and publisher own the rights, you just happen to own a printed copy, which you can read, lose, or destroy.

You, however own the rights to your creations (assuming you didn't rip them off from somewhere else, because then ... well, you wouldn't own them), so we're back to possibility and permission.

Possibility: We've covered that. There is no technological measure known to the human race at this time that can prevent content being duplicated. It can be done.

Permission: The laws of the land apply to you, just the same way (except that your fashion works are protectable under copyright law, because they no longer fall under the "useful articles" exemption). The law protects your work, and acts against those who copy your work without permission, sufficing that you follow the proper procedures.

That would be the DMCA notice. Linden Lab provides you with instructions on how to go about this process, and it is not a terribly complicated one. Some might say that it is all too easy.

Linden Lab's board chairman, Mitch Kapor, is coincidentally one of the three founders of the Electronic Frontiers Foundation, an organization devoted to the preservation of civil liberties in this more online, connected, digital age. The EFF has criticized the DMCA as one of its key failings is that it is in a service provider's best interests legally to take down content even when it is clear that no infringement is taking place. If Linden Lab removes content based on a faulty or false DMCA notice, it is simply not liable under law for any loss or damages as a result.

The alternative would be for Linden Lab to challenge a DMCA notice -- this is an expensive and time-consuming process that costs them (and hence everyone who uses Second Life) money.

In the event that content is taken down as the result of a DMCA notice, however, Linden Lab is obligated to provide both the filer of the notice and the person whose content was removed with notification that the action has been taken and what has been done.

Well, with a shortage of person-hours it must be quite a strain to handle all the DMCA notices without dropping the ball or fouling up. Or is it? Actually, how many DMCA notices have you gotten over the last year, Linden Lab? (it took a quite a while to get an answer by email, so we'll abbreviate the exchange a little -- Linden Lab's answers are exactly as given)

"Linden Lab does not publicly release this data"

Oh. Pity. Hey, how about what a rough idea of how many procedurally correct and valid DMCA notices were actioned versus challenged?

"Linden Lab does not publicly release this data."

Okay, so we're not getting very far here. Work with us, alright? Assuming Linden Lab receives a procedurally correct and valid DMCA notice (everything present and correct according to your guidelines), how is it then processed?

"Linden Lab of course cannot comment on specific DMCA claims or particular Residents. However, information about our DMCA policy is available at http://secondlife.com/corporate/dmca.php. Our policy page explains how to submit a notice of alleged copyright infringement and is designed to make the DMCA process as straightforward and painless as possible. We respond to clear notices of alleged infringement, and when a notice is difficult to understand, or does not provide information required by the DMCA, we take steps to notify the claimant of these issues and request supplemental information as appropriate."

Hold on. That's not even close to what we asked. Try again, please?

"Linden Lab takes content down and notify[sic] as described at http://secondlife.com/corporate/dmca.php"

Well, that answers the question. Just not usefully. We're not sure we learned anything at all there, really, but we tried at least. We thought about asking about how many of the valid and correct DMCA notices were either actioned or challenged, but there's only two possible answers to that question. One is the legally correct and responsible "All of them." and the other is, well, "Linden Lab does not publicly release this data."

Either answer is not useful to either us or to you, so we didn't even go there.

We have all heard stories of Linden Lab failing to respond or act on due-process notices. In some (but not all) cases, it appears that the copier can move accounts and content faster than Linden Lab can take action.

We're hoping the extra resources will help avoid these regrettable situations. Those situations must be avoided at all costs, as Linden Lab is not empowered to make law (not even in Second Life -- where it can only make rules, which are quite a different thing), but it must abide by law the same as all of us must.