Is it copyright or copywrong?

When it comes to intellectual property,
do you say, “What—me worry?”

by Pollywog Gardenvale

Linden Lab’s Terms of Service (TOS) agreement “...recognizes Residents’ right to retain full intellectual property protection for the digital content they create in Second Life, including avatar characters, clothing, scripts, textures, objects and designs.” In fact, the ability to “own your own creation” is certainly what attracts a lot of creative talent to SL.

There are signs, however, that some SL creations may cross legal boundaries. Intellectual property attorney, Benjamin Duranske, has a recent commentary post on a Second Life store, Body Doubles, at Virtually Blind. Virtually Blind is a site that specializes in “virtual law.” And Body Doubles sells celebrity look-alike avatars. The right at issue is the “right of publicity.”

"What—me worry?
"Is intellectual property really something that Second Life residents should worry about? Or, can they say, like Alfred E. Neuman, “What—me worry?” I spent a lot of time reading Mad Magazine and drawing Don Martin cartoons as I was growing up. So, imagine my joy to find an original lithograph of Alfred E. Neuman stashed away in my grandmother’s closet! On closer look however, I discovered that something was amiss. First of all, he was wearing the wrong necktie and secondly, the familiar, “What—me worry?” caption said only, “Me—Worry?” Then I noticed that the copyright date was about forty years too soon.

So that explained the necktie and vest, but I had always thought that Alfred E. Neuman was a creation of Mad Magazine. (It would be like discovering that Microsoft didn’t really invent MS DOS.) So if Mad Magazine or its publisher, Entertaining Comics didn’t create Alfred E. Neuman, then where did he come from? I didn’t know what to believe anymore.

A little research revealed that the name “Alfred E. Neuman” was taken from the Oscar-winning musical director, Alfred Neuman, uncle of Randy Neuman. As it turns out, the composer’s name had been bandied about on Henry Morgan’s radio show and was later picked up in parody by Mad Magazine.

The face of the “What—Me Worry Kid” as he was sometimes called, was actually clip art that was used to design a fake mail order catalog for the cover of an early issue of Mad Magazine. In April, 1956, the face of the kid (who was called “Melvin Coznowski” around the EC offices) made its first full-page appearance on the inside back cover of the magazine.

Soon after Mad Magazine adopted the clip art kid as its official mascot, the publisher started to receive complaints from people who claimed to hold copyright to the artwork. The most substantial claim came from Helen Pratt Stuff, whose late husband, Harry, had applied for and received copyright assignment in 1914. Over the next few years, Harry Stuff produced and sold thousands of postcards that featured the “The Original Optimist” above the “Me—Worry?” caption.

Although Harry Stuff stopped printing the image after 1920, it continued in broad circulation for decades. After renewing the copyright in 1941, Helen Pratt spent much of the remainder of her life pursuing people who were reproducing the image in violation of her copyright. By the time she went after Mad Magazine, Helen Pratt had six copyright infringement cases under her belt.

The key issue in her case was to establish that she, as copyright holder, had consistently pursued every possible case of infringement. Her claim would be ruled invalid if it could be proven that she failed to pursue even one instance of copyright infringement, or if it could be established that the image had been in use prior to the time when her husband applied for the original copyright in 1914.

The case began in a lower court and progressed to the Federal Appellate Court of New York, which found that Harry Stuff “had been most derelict in preventing others from infringing on his copyright.” In addition, it was established that the image had been in use prior to the turn of the century and had in fact, been part of the public domain. The custody battle over who owned the right to the image eventually made it all the way to the Supreme Court of the United States, which ruled in favor of Mad Magazine.

The spirit of the Open Source movement
So just as you are what you eat, you own what you create. Everything that you draw, paint, design, compose, develop, write, or invent (on your own time) is your intellectual property, and you can do with it what you want. Whether you choose to protect it or give it away, the decision is yours.

Linden Lab, the developer of Second Life, has chosen to give much of their intellectual property away, in exchange for a larger vision. From its inception, Second Life was developed as an open source platform. The GNU (as in canoe) operating system—on which the Second Life software runs—is a product of The Free Software Foundation; an organization dedicated to “promoting computer users’ rights to use, study, copy, modify, and redistribute computer programs.”

The spirit of the open source movement can be found in the Second Life Terms of Service agreement which states, “You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law.” This position sets Second Life apart from other 3-D environments and is what keeps the home fires of the Second Life economy burning.

However, a commitment to the open source movement and the protection of one’s copyright are not mutually exclusive. Just as Linden Lab is committed to developing an open source platform, they are equally committed to protecting their brand and logo.

The Terms of Service and the Digital Millenium Copyright Act
Every user of Second Life is obligated to understand and abide by copyright law and the Second Life Terms of Service. The TOS has much to say on this issue:

“...you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content.

“You will comply with the processes of the Digital Millennium Copyright Act regarding copyright infringement claims covered under such Act.“

In the year 1998, the Digital Millennium Copyright Act was signed into law by President Clinton. It was designed to enforce the treaties established in Geneva by the World Intellectual Property Organization.

The DMCA states that it is a crime to break the copy protection mechanism on commercial software, or to develop or distribute code-cracking software or devices with the intention of making illegal copies. Furthermore, it requires webcasters to pay licensing fees to record companies for any online “airplay” or for any copyrighted material that is downloaded from the Internet.

The law however, does permit a few exceptions. Code-cracking software can be legally developed if used for research, to test software during the development process, or to test the integrity of computer security systems. Exceptions are also made for many nonprofit libraries and educational institutions. Internet service providers cannot be held liable for simply transferring protected data across the Internet. However, they are expected to remove any material from their service that appears to violate copyright law.

Last year Second Life merchants were in an uproar over the release of a debugging tool called CopyBot that permitted the wholesale copying of objects without permission from the owners.

The utility had originally been created as part of the libsecondlife open source project, sponsored by Linden Lab. The original purpose of the utility was to reverse engineer Second Life and expose areas of weakness. However, the code was made available to less scrupulous developers who, in turn, made modifications and unleashed it upon the community where it ran amok, making duplicates of avatars, objects, and textures. After meeting with residents, Robin Linden explained their concern:

“This product has caused tremendous worry among content creators who want to understand how its use may possibly affect their business. In particular, they are concerned about theft of their creations, and the potential for unscrupulous people to undercut their prices and essentially take away their business.”

The incident prompted Linden Lab to pull the utility from distribution and make its use a violation of the Terms of Service agreement, although copies of CopyBot soon popped up for sale on the SLExchange. Cory Linden clarified the company’s position on the matter:

“The use of CopyBot or any other external application to make unauthorized duplicates within Second Life will be treated as a violation of Section 4.2 of the Second Life Terms of Service and may result in your account(s) being banned from Second Life,”

Second Life is home to a large community of independent musicians who perform original work, usually at no charge, at venues throughout the virtual world. However, there are others, including many DJs and nightclub owners, who routinely perform work that is owned by another.

The Copyright Act of 1976 identifies various “musical works” and “sound recordings” that are eligible for copyright protection. A song that is sung and recorded is considered a sound recording by a person who records the performance, and as a musical work by the songwriter. Typically, a record label owns the copyright of a sound recording, and a music publisher owns the copyright of a musical work.

In 1995, Congress enacted the Digital Performance Right in Sound Recording Act (DPRA) which granted copyright owners of sound recordings a limited performance right to make or authorize the performance of their works “by means of a digital audio transmission.” Often referred to as a “digital performance right,” it made a provision for qualifying subscription services and preexisting satellite digital audio radio services to transmit recordings without first obtaining consent from the copyright owners and without having to negotiate license fees for each sound recording transmitted. However, it also included a provision for copyright owners and services to designate agents to negotiate and collect fees, and to distribute royalties.

In 1998, the law was expanded to include the Digital Millennium Copyright Act that defined the rights and obligations of webcasters, including those who make temporary, or “ephemeral” copies of a sound recording for streaming. Since then, the DMCA has been hanging like an ax ready to fall over the head of anyone who doesn’t pay to play. After many appeals and much lobbying, the ruling fell with a thud on May 1, 2007 when the Copyright Royalty Board issued its Full Determination of Rates and Terms, which will go into full effect on July 15, 2007.

It is a complicated formula with various provisions, but the basic rate for online “airplay” amounts to $0.0011 for each performance. This may not sound like a lot of money, but multiply that amount by each seat in an online audience. The fees are due retroactively from January 2006, and are scheduled to increase incrementally each year until 2010. By that time, the fees will be more than double the 2006 rate. The schedule includes a transitional period of two years that allows webcasters to pay using an Aggregate Tuning Hour formula instead of paying for each performance. It is believed that the new rates will force many independents out of business and will make it next to impossible for college-run stations to continue operation. Terrestrial radio stations have long operated under the music royalty system, but those who operate both terrestrial and web-based broadcasts find themselves paying twice for each simulcast program.

Acting as an agent for the copyright holders, the Recording Industry Association of America has been relentless in its pursuit of webcasters and podcasters, and also individual, file-sharing music downloaders. We have all heard the stories of people hauled into court for downloading music in violation of the Digital Millenium Copyright Act. Even grandmothers who unknowingly let their grandchildren use their computers are not exempt. They too have been hit with fines for each secondhand download.

Are you content to create content?
Second Life is one of the most creative development platforms to emerge since the dawn of the desktop computer era, and it is unleashing a blast of energy that has captured the imaginations of programmers, graphic artists, musicians, and writers alike. It has proven to be an ideal prototyping environment and an incubator for developers, researchers, fashion designers, and marketeers.

In fact for some, Second Life is starting to feel more like “Second Job.”It is entirely possible that some of the content and applications being spawned in Second Life will eventually find their way back into the real world marketplace. Developers who are interested in pursuing the commercial marketplace are well-advised to protect their intellectual property inworld to prevent it from slipping into the “freebie” public domain. There is nothing selfish about doing so. It is the fundamental right of content developers to retain ownership of what they create in Second Life, or elsewhere. It is, in fact, one of the driving forces behind the Second Life economy.

In addition to the hardcore content creators are the countless others who are drawn to Second Life just for the fun of it, to make a quick Linden, or to find a loose avatar. Most people in this category don’t spend much time thinking about intellectual property rights, and many have accepted the Terms of Service without even reading them. As a result, Second Life has become a fertile field of intellectual property violations just ripe for the picking. Already there are many attorneys in avatar who represent real-world clients seeking to protect their intellectual property. An individual who recently attended a meeting of the Second Life Bar Association described it as “a bunch of attorneys discussing how they were going to sue for copyright infringement.”

One thing is for certain: There is plenty of business in Second Life to keep the members of the Second Life Bar Association busy for a long time to come. In many cases, the law will prove to be on the side of clients; real world business people with the motivation and money to pursue the issue. But the target of the complaint won’t be Linden Lab, because they are, after all, only the service provider. It will be the individual user, or group of users, who (either knowingly or unknowingly) have violated the intellectual property rights of another. After all, it’s so easy to open a gallery full of hijacked art, fill a clothing store with designs ripped off from an online catalog, or to open a Starbucks on your corner sim.

Although Linden Lab positions itself as a service provider—rather than content developer—the umbrella of copyright law hangs over both sides of the equation. While the company clearly doesn’t relish playing the role of an enforcer, they are obligated by the terms of the DMCA to reach down with the long arm of the law and pluck a few prims now and then. However, Linden Lab would much prefer that the emerging community of Second Life users adopt and build upon the existing set of community standards.

So what is the moral of this story? Should you say, “What—me worry?” when it comes to intellectual property? Yes, you owe it to yourself —and to others—to understand and abide by the law. Unless you have deep pockets, you don’t want to be pursued by someone as tenacious as Helen Pratt Stuff, or as motivated and relentless as the Recording Industry Association of America.

But what would Mad Magazine have been without Alfred E. Neuman? I for one, am glad they won that custody dispute.

* * *