Wednesday, September 16, 2009
Certainly, I have a lot of sympathy for Mr. Serpentine. He has to deal with rampant piracy. People across the Grid make illicit copies of his products, and sell them, even under the same trademarked name. That's wrong. Linden Lab, demonstrating its usual level of customer service, really doesn't do anything about it. Complaining to them is a waste of time. The one time they did try to remove an infringing item, they accidentally destroyed every working copy of his bed in existence. If that happened to me, I'd explode.
Except—it did happen to me. Literally the day after I released En Garde, Linden Lab made a change in the LSL scripting language that broke the game.
I accepted it as part of doing business in Second Life. Second Life is a horrible, buggy, unstable platform, and it's been that way for years. It will never get better. The best you can hope for is to find some way around all the ugliness. So when Linden Lab broke my game, I started coding a way to fix it.
Fortunately, Linden Lab fixed it before it could release my patch. And En Garde has gone on to become very successful. I didn't stress out about it too much, and my blood pressure didn't go up.
If I were really the creator of SexGen, I don't think I would get too upset over copyright violations. By most accounts, Mr Serpentine has made over a million dollars selling beds in Second Life. A million dollars. If I felt I was getting irked over people copying my stuff, and I had a million dollars, I'd just book a week's vacation in the Caribbean.
One thing puzzles me, and I haven't seen anyone talk about it. This lawsuit is being filed as a class action. Class action lawsuits are meant to consolidate plaintiffs when you have thousands of people who have been wronged. It streamlines the legal process and makes it possible for people who wouldn't otherwise be able to sue to gain redress.
But if you read the complaint, the class of people who are allowed to participate are creators who have registered Trademarks and Copyrights.
How many people in Second Life are selling goods with registered trademarks and copyrights? Registering a trademark costs a good bit of money. Copyrights are cheaper, but you still have to file the paperwork. I'd bet there's less than a dozen people, not counting corporations like Coke and Adidas, who actually own registered trademarks on items they sell in Second Life. So who's going to join this lawsuit?
I see a lot of people cheering for Mr. Serpentine. But I think a lot of that enthusiasm is borne of the frustration people have felt when dealing with the brick wall that is Linden Customer Support. Would people be so encouraging if this becomes a battle of Linden Lab versus the Fortune 500?
Policing IP infringement is hard. It's hard even when you have a simple website. That's why almost any website, when given notice of a DMCA violation, will immediately take down the indicated content. It's easiest to punish first and ask questions later. Determining if something really is infringing takes work. A human has to investigate the claim, see if the person filing the complaint truly has the rights to the IP, determine if the claimed work infringes (maybe it's Fair Use?)... nobody wants to do all that. So they just take it down, hopefully inform the other party, and let them sort it out in court.
The situation is even worse for Linden Lab. To investigate a claim they'd have to walk around in a virtual mall. Maybe the infringing item is one vendor among one hundred on a wall of vendors. When I'm shopping and I know the item I'm looking for, it can take me ten minutes browsing through the store to find it. I don't think they can simply ban the account either. If someone is selling one infringing item in an otherwise legal store, does that justify banning them? I don't think so. There's too many people complaining about Linden Lab banning them, and being unable to reinstate their account, already. It would be too easy to frame someone for infringement.
There is one solution that Linden Lab could take to resolve this situation. It would actually reduce their enforcement costs. But it's a solution I fear, because it is so simple and obvious -- and wrong. Linden Lab could remove all ability for people to sell items in-world. All purchases would have to be done through XStreet.
If everything was sold through XStreet, then Linden Lab could enforce DMCA takedown requests exactly like everyone else. If someone is selling an infringing item and they get a complaint, then they take down the page. Simple and easy, and nobody could fault them for negligence, because it's exactly what every other website is doing.
Linden Lab takes 5% of every sale on XStreet. So if that became the sole place to purchase items, then every content creator takes a 5% hit. Or they pass that on to buyers.
I sell items both in-world and on XStreet. When XStreet was independent, I accepted the 5% fee as a part of doing business, and a reasonable surcharge for the additional exposure they gave me. When Linden Lab took over XStreet, I grumbled a bit but didn't do anything. If XStreet becomes the exclusive marketplace, though, I will have to raise my prices to compensate.