So tonight I was supposed to go and post about nifty regions and such from InWorldz, but I'm finding myself in a dilemma here, as that's not what I want to blog about, so I'm not going to. Instead, I'm going to go out on a limb here and post some stuff that some may raise an eyebrow over. I think it's critical though, to bring this up as it's becoming a heated debate for people.
Over the last couple of months, I've been reading many blogs and posts and our own forum discussions in regards to IP and copyright protection. I've heard about so-called IP conferences being held to explain rights and so on. I've heard wide sweeping claims of unfairness, profit-driven licenses and claims of stolen good not able to enter worlds. These are bothersome to me in several ways, and I feel I need to vent. Now, by no means am I an expert, which is why we have an attorney to help us deal with where our knowledge may lack.
What I do know from an OSP standpoint is pretty important, and we've tried to make these things very clear on our forums. What I do not understand is why any OSP would want to avoid dealing straight on with the issue of IP protection. I do not understand why anyone would think it's wiser to bypass the laws already put in place to protect an OSP, and even better yet, why anyone wouldn't want to investigate these issues themselves.
Intellectual Property... it's kind of a daunting phrase when you think about it. What exactly IS Intellectual Property? From the wikipedia:
"Intellectual property (IP) is a term referring to a number of distinct types of creations of the mind for which property rights are recognized—and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.
"Although many of the legal principles governing intellectual property have evolved over centuries, it was not until the 19th century that the term intellectual property began to be used, and not until the late 20th century that it became commonplace in the United States. The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origin of copyright and patent law respectively."
I think that's fairly clear as to what Intellectual Property is. What starts to make it unclear though? Well, you can create "derivatives" of IP, however, there has to be some guidelines to them. There's a very fascinating article at the Wikipedia on this exact subject and I'll highlight the tidbit that truly intrigued me in regards to Duchamps defacement of the Mona Lisa:
"The most famous derivative work in the world has been said to be L.H.O.O.Q., also known as the Mona Lisa With a Moustache. Generations of US copyright law professors — since at least the 1950s — have used it as a paradigmatic example. Marcel Duchamp created the work by adding, among other things, a moustache, goatee, and the caption L.H.O.O.Q. (meaning “she has a hot tail”) to Leonardo’s iconic work. These few, seemingly insubstantial additions were highly transformative because they incensed contemporary French bourgeoisie, by mocking their cult of “Jocondisme,” at that time said to be “practically a secular religion of the French bourgeoisie and an important part of their self image.” Duchamp’s defacement of their icon was considered “a major stroke of epater le bourgeois." Thus, it has been said that the “transformation of a cult icon into an object of ridicule by adding a small quantum of additional material can readily be deemed preparation of a derivative work.” A parodic derivative work based on Duchamp's parodic derivative work is shown at http://docs.law.gwu.edu/facweb/claw/ch6c2.htm."
In other words, this derivative work, while it enraged people, it DID in fact have enough impact on the underlying group of people to break apart into ridicule of these people.
So how does this all apply to what we see and deal with as an OSP? Well first off, we are not the judge, jury, nor executioner by any means. The law strictly states that we are NOT to be in fact as a registered agent. And anyone who thinks they can do better than being a registered agent, really should read up on IP laws again. By not being a registered agent, and allowing any kind of content into their world, they are risking exposure to lots of lawsuits. As a registered agent, we are protected by that, as we follow the law, and we make sure we comply with that law.
So what is that law, what are our responsibilities? Our responsibilities are not to police the content, that is first off. The law recognizes that no ISP/OSP can monitor every single bit of information that goes through their service. However, once content is recognized as copyright infringement, it is up to the original copyright holder, or their authorized agent, to file a DMCA with the ISP/OSP. Only a copyright holder, or their authorized agent, may file a DMCA. Once a DMCA is filed, it is not up to the ISP/OSP to decide if they should take it down. It is up to the ISP/OSP to block access to the material immediately, and to notify the original uploader/creator/responsible party that the content has been blocked. The other party then has the right to file a counter-claim. At which point, the ISP/OSP then gives the information to the originating party of the original DMCA filed, so that it can then be taken to court. The ISP/OSP then waits 10-14 days, if no suit is filed, then the block from the material must be lifted.
So what does that have to do with the above as far as derivative works and so on? One of the single most contested things I read about are textures. Textures, textures and more textures. Textures are vital to any build, the build is nothing without them. Unfortunately, for over a decade, Intellectual Property on these was not something very highly regarded. Mostly because back then, textures that were out there, weren't really used for much other than web page backgrounds and so on. But as the gaming industry and graphic arts industry started to grow in leaps and bounds, IP rights suddenly became a very big deal. Few years behind the trend, but isn't that always the way with hindsight?
I have seen many textures that are supposedly original works, but when you look at them, they really are not. They are a texture taken from a pack that was bought (or in the worst cases, not even bought) or found on the public domain sites, few pixels added to them, and claimed as new work. These are started to be contested more and more, and I will watch with interest what our court system has to say about this, as the derivatives that they speak of have a fundamental philosophical impact to what they do. So, does changing the color of a carpet texture from red to blue, have a fundamental philosophical impact? Little limited in the breadth of the example, but this is something to think about. In our digital worlds that we enjoy, do these things have an intrinsic value in how the new work is thought of? These are things our courts will have to decide on, and I'm guessing in the next 5 years we'll see some of this start coming down the pipeline.
Now comes the next hardest part... the licensing a copyright holder puts on their goods. Well, simple fact is, it IS their goods. Whether you like it or not, they have a right to put as restrictive a license as they desire. They have a right to limit exactly how much of it you can use, where you can use it, and anything else they want including "may only be used when the moon is blue in the designated year of 1874". Nothing you can do about it. And this holds true for virtual worlds. Just because you own something full-perm, doesn't mean there isn't some licensing above and beyond that. Only the original copyright holder can state what those terms are, and those terms be upheld by them, or their authorized agents.
It is up to the end consumer whether or not they will continue use of those items, as most of this is market driven. What does have me concerned however, is not so much the market driven basis for these licenses in VW's, as I've seen some VERY fair policies in regards to licenses being extended for a moderate price to allow the user to use them in ANY virtual world, but the concept of reversing a ToS, and not just by those copyright holders (which is a whole 'nother blog I may or may not do someday) to make more money off the copyright. This is bad juju in any business, not to mention, completely unenforceable. Case law already states that outside of humanitarian rights, you can not simply reverse your terms of service unless both parties agree in writing to the reversal. This is becoming more and more a practice. So my advice to a copyright holder: speak to an attorney first. Understand your rights as the copyright holder, and what you can limit and how best to do so, and most importantly... the wording of your license.
To merchants, or creators, looking to expand into more VW markets, do your research. One of the single biggest fallacies I hear, is that a world is secured by not allowing other viewers in. If the world is using the LL based viewer in connecting to their world, guess what, they are under licensing terms to release that code. And anything that is opensource, is never fully secure. No matter how much one wants to croak out that it is, it's not. So unless they are in violation of the licensing terms for the viewer, or using a completely rewritten viewer that is proprietary to them, the claim is bogus.
Check the business, and it's affiliation to the USPTO's registered OSP agent list. Now, true, given how slow our government works, they may NOT be listed there, but that doesn't mean you can't find out, ask them for a copy of their paperwork filed. Remember, they WANT your business, you have a right to ask anything you need to know as a consumer. This was something we missed, and it could have cost us alot, but we have since rectified it and made sure our paperwork is in place. Any OSP who doesn't do this, and to be blunt, any grid is an OSP, is going to find themselves in a world of hurt later on down the road. If the business is not registered or held in any part under the United States, find out where they are located at and check against the Berne Convention to see if they are participators. How the Berne Convention affects filings of copyright and so on, I have no idea, as we fall under the US laws. What I do know, is the Berne Convention requires each participating country to have pretty stringent copyright laws in place and how to deal with infringement.
I have heard things like IP will be obsolete by 2012, well I don't see that as being the case. I do think it's a very uphill, very challenging battle, but I have faith that we as humans, and as morally right people collectively, will find a way to negotiate these challenges and find what is a fair and balanced way to protect consumers and creators. Yes, the courts will drag their heels and the digital age is expanding by leaps and bounds, but I do feel it will all come around at some point... I just hope it's within my lifetime ;)
See ya InWorldz! :)
Oh, and PS. ya'll can blame Tranq and Legion for the lateness of this blog as I started it last night but didn't get to finish!