Monday, July 09, 2007

Sex, Second Life, and Copyright

Copyright infringement has come to Second Life, and it is not surprising that it involves sex.
Kevin Alderman (a/k/a "Stroker Serpetine") owns Eros LLC, which markets SexGen bed, a piece of virtual furniture that allows Second Life users to simulate over 150 sex acts, a veritable Second Life Kama Sutra. The bed retails sells for $46. Alderman claims that "Volkov Catteneo" (the suit names the avatar as a John Doe) copied the SexGen bed and is selling it on Second Life. after first reporting the problem to Linden Labs. Alderman is reported to be planning to subpoena Linden Lab and PayPal to in order to discover Catteneo's identity and financial documents. Catteneo is told Reuters that "I am not some kind of 'noob'. My name is not on file. I do not even have a permanent address either," he said. (See this article in Wired).

There are no special rules for infringement on Second Life, and to me it resembles suits over video games. I would be skeptical if the argument that a virtual piece of furniture is, for copyright purposes, a useful article, anymore than similar depictions on video games.


Crosbie Fitch said...

Moreover, copies are only depicted as having been made.

How does anyone know that any copies have actually been made?

If I crack your mirror and it then shows two reflections, have I created a copyright infringing, secondary reflection?

William Patry said...

Crosbie, in this case, how do you think the display was generated?

Anonymous said...

My immediate reaction is, Why isn't this being litigated within Second Life? You'd think there would be a way to do it, no? Taking it to RL kind of undercuts the whole SL philosophy.

William Patry said...

My understanding from reading the press is that a complaint was made to Linden Labs, but nothing happened.

KimPallister said...

> I would be skeptical if the argument that a virtual piece of furniture is, for copyright purposes, a useful article, anymore than similar depictions on video games.

I was rather surprised at your curt dismissal of the issue in this post. These 'virtual world' cases are pretty interesting, and seem to be - potentially - a new frontier for law in some ways.

The 'piece of furniture' (in this case or any other) is of course not a piece of furniture at all, it's an arrangement of bits. It's software. In this case, it's software provided as a service which in turn extends another service. In this way, it's not much different than a Web 2.0 Google maps mash-up, though of course far more niche (or is it?). So the question becomes one of the licenses under which the software was developed, distributed, and used, by each of the parties involved.

The other issues that are not nearly as straight forward are ones in which the use of the software to create a 'virtual world' have done so effectively enough to provide an environment in which people feel they are 'experiencing'. Is rape of someone in the virtual world a crime? If so, what crime? And what if the two parties involved live in different countries? Who's law applies.

Anyhow, interesting stuff. This seems a trivial case but precedents will be set should it actually go to trial.

William Patry said...

Kim, thanks for your post. I don't agree that I curtly dismissed anything, though, and I think you misunderstand the thrust of my point. My skepticism of the argument that a piece of furniture would be regarded for copyright purposes as a useful article had nothing to do with the case being interesting or as arising in Second Life or any virtual world.

Instead, the skepticism came from my recognition that a piece of furniture in a virtual world is the result of creative effort, in the original graphic and in the coding. I therefore argued that the furniture at issue in that case should be protected as graphic work, and without regard for what it would be if it was in the real world.

I think the analogy to a video game holds: no one argued in the early video game cases (which may have arisen when you were still in diapers so I can't blame you for not remembering them) that a video game that depicted buildings or other "real-life objects," had the scope of its copyright limited because in the real world they would be regarded as useful articles.

There are interesting issues in Second Life, including maybe some copyright issues, but I don't think that in this particular case there is any new point in the copyright sense that hasn't already arisen in earlier cases, including the video game cases. Judge Easterbrook warned about a Law of the Horse, in which law would be segmented into niche areas, each with their own doctrines: one for horses, one for pigs, one for cows. There are of course things about each animal that are different, but it is unlikely that a breach of contract action for failure to deliver a healthy pig requires a totally different regime than if the animal was a cow. Both are more properly subsumed within contract law.

Some Second Life issues will similarly require nothing more than general principles of copyright. That is, however, neither to curtly dismiss Second Life any more than it is to dismiss the purchaser of a horse by saying your claim will be analyzed under general contract issues, and not under a special Law of the Horse.

KimPallister said...

Good points William, and yes, I guess I did misinterpret the thrust of the argument.

I still think my point holds though, that while labelled a 'piece of furniture', the article in question is more than that. It contains the functional code to allow the avatars to perform the acts promised. Thus it's more than just a set of 3D modela and texture data (the visual elements), it's also a set of software enabling new functionalithy within the application of SL.