SexGen is a well-known name in SL. Go just about anywhere in Zindra, and you’ll see adverts for SexGen beds….so much so, that you’d think that “SexGen” was a generic term.
It’s not. It’s a trademark. It belongs to Eros LLC, operated by Stroker Serpentine – as does the underpinning code and IP relating to objects powered by the SexGen system.
That so many apparent knock-offs of SexGen items thrive in SL points to the endemic nature of content theft in-world – theft which LL are only now resuming efforts to try and make harder, despite having over six years – plus their pre-launch period – in which to more properly address the matter and try to stay abreast of evolving techniques and capabilities.
Thus, it is unsurprising that Eros has – together with clothing making Nomine – filed a class action against LL for allowing such copyright infringement to run unchecked in SL for so long.
The suit itself makes interesting reading – and has already created a storm of debate on LL’s own blogrum and elsewhere. Certainly, the suit is taking a different tack from other attempts at suing LL. In all it cites twelve individual causes for action against Linden Research, the majority of which relate to deliberate / negligent trademark / copyright violations, but which also extend to breaches of Californian business codes and intentional / negligent interference in economic relations.
The crux of the argument is that Linden Research is benefitting from the inappropriate use of trademarks and copyrighted property in that the infringing / illegal goods must be sold via in-world land – from which LL benefits in terms of tier payments OR via XStreet – from which LL benefits in terms of the commission they receive on each sale. The argument even extends to ripped textures (particularly relevant in the Nomine side of the action) – wherein LL benefits to the tune of L$10 per ripped texture uploaded. Finally, there is the claim that LL also benefit in that they receive a 3.5% commission on every transaction of illegally-raised L$ transferred out of SL as hard currency.
This is indeed an interesting track to take – and one in which it is hard to see LL being unable to escape any claim they are failing to meet their responsibilities, either deliberately or simply through their own negligence – again, note that the action purposefully differentiates between the two and brings separate causes for each in terms of trademark and copyright infringements against Linden Research. Thus, it is hard to see that “ineptitude” on LL’s part can in any way be proffered as an excuse.
Certainly, the approach calls into question whether Linden Lab will be able to defend itself using the DMCA in much the same way as Veoh has apparently successfully done. But that is not to say the case is by any means open and shut. Take the DMCA and couple it with LL’s own recent announcements on the subject of content protection, their ToS, the fraud protection within Lindex – and one can see that LL may be able to mount a persuasive – to a judge, if not to content creators – defence of their position.
What cannot be dismissed is that should this come to an open trial, it puts Linden Research between a rock and a hard place. Should the case come to court and they lose – then they undermine their self-promoted position as the “safe” virtual platform for “serious” business – which has been touted so very recently by Amanda Linden. If they win, then they risk losing the confidence of every earnest content creator, big or small, already within Second Life.
Thus, either winning or losing the case could irrevocably tarnish Second Life’s reputation as a “serious” platform.
…Which, in a way, is why this may yet end-up as a non-issue, inasmuch as one can see it being quietly resolved out-of-court, which may in turn result in little or no major changes within SL beyond those already roadmapped by LL themselves. Or maybe the fact that the matter is now in the public eye – and being so widely debated – may still encourage LL to be more proactive in dealing with content ripping despite any out-of-court they may reach with Eros / Nomine.
Inara Pey: Living in a Modemworld 