With the lawsuit pending against Linden Lab, you'd think now would be a pretty poor time for them to mess up on handling IP rights infringement. You'd think that, wouldn't you?
Second Life user and content-creator, RobbyRacoon Olmstead, recently discovered one of his items had apparently been duplicated in infringement of his creator-rights. He obtained one of the copies, verified the matter to his satisfaction, and reported the matter to Linden Lab who suspended Olmstead's account the following day. Seriously, how much worse could the Lab have mucked that one up?
Olmstead has been suspended pending "identity confirmation", a process which requires him to submit various personal identity documents to Linden Lab (or their outsourced support people) and wait for some unspecified amount of time, but there's no indication or guarantee of further action in any case.
Now, it's possible this is a bit of general ass-covering by the Lab, Olmstead didn't submit a proper DMCA notice, just an abuse report, so his report to the Lab lacks all the necessary requirements for the Lab to take action under the DMCA.
The simplest thing for the Lab to do in this circumstance would be to simply write back, say "You need to file a DMCA notice before we can investigate IP rights-infringement" and point to the Web-page where the DMCA requirements and process are described.
If the Lab receives a DMCA notice via the proper procedure and containing the correct information, they're not subject to any liability if they should take down the described content reasonably and promptly, even if the DMCA notice was filed falsely.
On the other hand, even if they verify Olmstead's offline identity through the documentation he provides, the Lab is still now open to liability if they take action, because no formal DMCA takedown notice has been received. This is still just an abuse-report situation.
So, why they're even going through the identity-confirmation step with Olmstead is a bit of a mystery. Suspending his account during the process seems completely nonsensical.
This reaches to the core of the lawsuit-in-progress (Eros LLC et al vs Linden Research Inc). We spoke with plaintiffs' attorney, Michael Aschenbrener, during the week and discussed that core. The plaintiffs essentially assert that:
- Linden Lab failed to comply with their lawful obligations under the DMCA/Lanham act.
- Linden Lab are thereby profiting knowingly, by acting slowly (or not at all) once notice has been given.
- Copyright/trademark usage and infringement should be tested in court, to dispel erroneous notions that intellectual property rights are not medium-agnostic.
- The size or scale of the infringement has no bearing on the rights of the creator to protect their work and seek redress by law.
From speaking with a number of Second Life users about creator-rights, we get the clear impression that users feel that if (for example) Disney Corporation were to file a DMCA notice that it would be responded to by the Lab swiftly and with care, but that a similar DMCA by a content-creator who was one of the Lab's own customers would be slow to be responded to, or ignored.
Whether or not that impression is true, it certainly seems to be widespread – and the situation with Olmstead seems to support rather than refute it.
Update: Olmstead's account was reinstated, this-afternoon. Well, sort of:
"The thing is, although they've technically re-instated my account, I am no longer allowed to buy, sell, or trade $L, and they've eaten the $65USD worth of $L balance I had before this issue began. In other words, I am effectively (if not explicitly) prohibited from being a Second Life merchant."
With a pending lawsuit asserting that Linden Lab bungles handling the rights of infringed content-creators, you'd think that they'd be taking more care right at this moment.
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