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Fahy vs Linden Lab: This just gets weirder

Tateru Nino

The other day we covered a lawsuit by Corey Fahy (AKA Belial Foulsbane in Second Life) vs Linden Lab, various third-party viewer developers, content creators and others.

While there doesn't seem to be any case to really answer (because you can't copyright a name, method, process or algorithm, and Fahy seems ineligible for legal costs and statutory damages in any case) things definitely took a turn for the weird last week.

Reports are that Fahy, whose avatar is named Belial Foulsbane, has been sending an inworld notecard around to other users; to anyone whose avatar name is either Belial something, or has the surname Foulsbane.

Fahy's apparently claiming that he has copyright over the name (which, technically he can't have – it would have to be a trademark) and insisting that users with either of those names either help him game search results in order to promote his products, cancel their account or be sued.

Here's the text of the message that readers have been sending to us:

Dear [Belial or Foulsbane]

My name is Belial Foulsbane ©. You are hereby notified that your account name is infringing on my intellectual property for which I own copyright.

"You may not select as your Account Name any name that Linden Lab determines may cause deception or confusion; may violate any trademark right, copyright, or other proprietary right or mislead other users regarding your identity or affiliation." Terms of Service | Second Life

"3.2 You agree to use an Account Name in Second Life that is not misleading, offensive or infringing. You are responsible for activities related to your Account Name, and for keeping your password for this Account secure. You may not select as your Account Name any name that Linden Lab determines may cause deception or confusion; may violate any trademark right, copyright, or other proprietary right or mislead other users regarding your identity or affiliation;"

You have three options.

(Option One) We can settle this together. The problem is that other users may be confused or mislead that you are connected to my Emerald Speed Rezzer©. This will cause my business financial loss as well as loss to the secondlife community due to the denied access to an extremely beneficial algorithm that speeds up rez time. The solution for me to allow your continued use of my copyright, is for you to come to my store and create a new pick linking to the Speed Rezzer in your profile so that users may find it. This pick must be at the TOP of your picks page on your profile, and must read exactly as the top pick in my profile does.

(Option Two) Login to your account at Virtual Worlds, Avatars, free 3D chat, online meetings - Second Life Official Site Click "Account" on the top left of the page. Click "Cancel Account" and confirm.

(Option Three) I will file a DMCA with Linden Labs against your account. I will subpoena your real life personal information from Linden Labs. Then I will file a class action lawsuit in the Eastern District of Pennsylvania against anyone that uses my Intellectual Property in their account name. You will be required to appear in person or I will win my case by default. I will sue for damages times ten, attorney fees, and financial loss of my business.

I will be automatically checking your (and other accounts) profile picks in mass with a program. Failure to post my pick at the top of your profile picks page will be considered a violation and I will take FULL legal action against you to the maximum amount the law will allow. I have hopes that we can work this out to both of our benefit.

Sincerely, Belial Foulsbane

Even if Fahy could be said to hold the trademark on the name Belial Foulsbane (which he can – as an unregistered mark), that still doesn't give him any legal traction against other users who have selected the same first or last name – no more so, in any case, than they have claim to consider him infringing on their own names.

Basically, if Fahy had any legal grounds to take action against holders of similar account names, they would likely have equal grounds to take the same action against Fahy.

Furthermore, trying to coerce users into gaming search results for him by adding his store to their profile picks constitutes a violation of the Second Life terms of service. Actually the entire notecard can be interpreted as a breach of those terms on grounds of threats and harassment.

How far this would get Fahy is moot in any case, as the third-party Emerald viewer has announced that functionality will be dropped for the feature that Fahy's Emerald Speed Rezzer relies on. [UPDATE: The Emerald blog was down for roughly 24 hours, and when it came back, the announcement had been removed from the blog. We're not sure what the story is there yet, and have contacted them for clarification. In the meantime, here's an image of that announcement:]

Fahy has denied sending the notecard out, claiming it was the work of griefers. It's true that the contents of a notecard are simple enough to fake. However, the notecard was sent by an object that Second Life systems identified as being owned by Belial Foulsbane, and on his land.

There have been times where it has been possible to spoof the ownership of an object, but we're not aware of any current exploits that allow it.

We spoke to Fahy in Second Life earlier this-morning, but he did not give us permission to quote any part of the discussion. Linden Lab is investigating the issue further.

Nevertheless, Fahy's DMCA takedown notices to the Lab (starting in approximately November 2009) have resulted in a net gain, with competitor products having been taken down by the Lab in response to Fahy's DMCA notices. Whatever else you might say, the copyright claims appear to have been a winning strategy for Fahy thus far.

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