Fahy vs Linden Lab: No case to answer?

Last week, on Thursday 8 April, Corey Fahy in Philadelphia filed a lawsuit against Linden Lab and more than 25 others, in the Pennsylvania East District Court (case number 2:2010cv01561, assigned to judge Joel Harvey Slomsky). Fahy alleges that an algorithm in one of his Second Life products has been subjected to copyright infringement, accompanied by the usual requests for damages, statutory damages, ten times damages, attorney's fees and all that.

Where do we even begin? We'll spare you most of the cruft and go straight to the heart of the problems that we can see with this particular lawsuit.

Firstly, Fahy is claiming that his copyright has been infringed, as others are using an algorithm that... well, it isn't too clear, but we believe Fahy's claiming that others have made similar products.

Well, as it happens you cannot copyright a process, method, name or algorithm. You can patent a process, method or algorithm, certainly, but not only is there no sign of such a patent, as a party to the Second Life terms of service during the lifespan of the product Fahy would have granted both "Linden Lab and to all other users of the Service a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License, under any and all patent rights."

Now, it turns out that Fahy doesn't appear to have registered copyright with the US copyright office anyway (even if copyright were applicable, which is apparently is not), which means that Fahy cannot claim for either attorney's fees or statutory damages – even if Fahy were to register it now.

Also among Fahy's defendants are the developers and distributors of assorted third-party viewers who have implemented the GPLv2-licensed viewer patch that obviates Fahy's product entirely. The product itself essentially boils down to a macro (called a gesture in Second Life) which makes adjustments to the viewer's draw distance – an idea first suggested (to our knowledge) by Phoenix Linden back in early 2006, and discussed many times since. Such assorted independent implementations could hardly be considered to violate Fahy's intellectual property.

It isn't actually clear whether Fahy's product actually provides a real measurable improvement to geometry and texture loading times as opposed to a merely psychological impression of improvement. It is reported, however, to place a significant extra burden on Linden Lab's simulators due to the increased management of certain kinds of data structures called interest lists.

Fahy's case doesn't appear to be being handled by an attorney, which shows from a reading of the documents. The motion for injunction particularly appears to allow a large loophole where Linden Lab could lawfully respond by suspending Fahy's own product sales – in fact, technically, that's a part of what Fahy appears to be requesting due to some overbroad language.

We'd be surprised if the case wasn't thrown out by judge Slomsky after the first response filings. Either way, Emerald viewer developers have indicated that they will be dropping support for the feature that Fahy's product relies on.

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