Hello!
posted by Donald Braman
Just a quick note to say that I’m happy to be serving you fresh legal blog entries. No lard or preservatives will be used. And if there’s anything I can do to improve your dining experience, just let me know.
I thought I’d start with a tasty Second Life dish that is making the rounds. For those who don’t know, Second Life is a virtual world in which millions of people do virtual work, go to virtual dance parties, build and sell virtual things, and, well, spend a lot of their real lives in front a computer doing all that.
I’ve never played Second Life and don’t really want to. Nor am I really interested in the legal considerations that normally get Second Life into the news (questions like: “What is virtual property?” and “Can I be taxed on my virtual income?”) Indeed, I think the best thing about Second Life is that it inspired the clever parody site, Get a First Life.
So why am I going on about it?
Having spotted the aforementioned Get a First Life website, Second Life lawyers swiftly sent them a little reminder about fair use law. At first the letter looks like a standard cease and desist letter, citing the appropriate law and so forth. Then things get interesting. I quote here at length because it’s a wonderful example of good lawyering:
It has come to our attention that the website located at http://www.getafirstlife.com/ purports to appropriate certain trade dress and marks associated with Second Life and owned by Linden Lab. That website currently includes a link in the bottom right-hand corner for “Comments or cease and desist letters.”
As you must be aware, the Copyright Act (Title 17, U.S. Code) contains provisions regarding the doctrine of “fair use” of copyrighted materials (Section 107 of the Act). Although lesser known and lesser recognized by trademark owners, the Lanham Act (Title 15, Chapter 22, U.S. Code) protecting trademarks is also limited by a judicial doctrine of fair use of trademarks. Determining whether or not a particular use constitutes fair use typically involves a multi-factor analysis that is often highly complex and frustratingly indeterminate; however a use constituting parody can be a somewhat simpler analysis, even where such parody involves a fairly extensive use of the original work.
Determining whether or not a particular use constitutes fair use typically involves a multi-factor analysis that is often highly complex and frustratingly indeterminate; however a use constituting parody can be a somewhat simpler analysis, even where such parody involves a fairly extensive use of the original work.
We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com/ constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.
Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.
In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.
Notwithstanding the foregoing, it is possible that your use of the modified eye-in-hand logo for Second Life, even as parody, requires license from Linden Lab, especially with respect to your sale of goods with the parody mark at http://www.cafepress.com/getafirstlife/. Linden Lab hereby grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo (as displayed on http://www.getafirstlife.com/ as of January 21, 2007) to identify only your goods and/or services that are sold at http://www.cafepress.com/getafirstlife/. This license may be modified, addended, or revoked at any time by Linden Lab in its sole discretion.
Best regards,
Linden Lab
Yes, that’s right, it’s not a cease and desist letter, it’s a proceed and permit letter. Moreover it’s written in plain English. Well done Linden Lab lawyers! If I ever see you in real life, real drinks are on me.
February 1, 2007 at 11:52 am
Posted in: Intellectual Property, Law Practice
Print This Post
Responses (8)
greglas - February 1, 2007 at 1:51 pm
Don — not disagreeing with you, but just to show that there are two sides to every story, see:
http://terranova.blogs.com/terra_nova/2007/01/proceed_and_per.html#c28538210
Deven Desai - February 1, 2007 at 2:40 pm
Don, I think the previous post’s point about another view reveals a problem with the letter too. The link says much of this but to be clear, isn’t there something odd about an imposed license? Would Get a First Life Have to reject the license to show that it did not agree that a license was needed in the first place? They shouldn’t have to do so and I doubt the license would hold up in court yet I wonder whether SL thinks it has sent a joke or a warning letter with some sort of alleged teeth? In other words would SL later claim that Get a Life acquiesced to the license a la confirming letter logic?
Donald Braman - February 1, 2007 at 2:50 pm
Interesting. Here’s my take on in-game-censorship:
Walk into a club too many times and start talking to other customers about the fact that the owner is a Nazi, a fascist, etc., and you’ll find yourself excluded from that store pretty quickly. What’s interesting about SL is that it is selling the illusion that it is not just a club, it’s a society. But it is (and this is the point of Get a First Life) really just an illusion that you can buy with various restrictions attached.
If I did play Second Life I suspect I’d be annoyed if the club owner *didn’t* eject the cranky people. I’d want my illusion to be that of a happy and fun place, not a real society with folks pointing out that my fantasy is, well, just a fantasy and that the club is really just a club that takes my money.
In saying that, I’m probably annoying plenty of folks who actually play Second Life and thus have a better sense of what actually happens there. I’d be curious to hear what they think.
Donald Braman - February 1, 2007 at 3:08 pm
On Deven’s point (about the joke letter being a kind of Trojan horse licensing agreement) – I think it’s just LL lawyers having fun in several ways: cleverly playing on the form of a cease and desist letter; pretending to take the parody site seriously by rejecting the invitation to send a cease and desist letter; then parodying a licensing agreement. All in all, the letter could have some legal weight, but I would imagine that the weight is just about all on GAFL’s side. A judge would have be incapable of reading the document as a whole to see otherwise. But, I suppose, there are judges like that out there.
Miriam Cherry - February 1, 2007 at 5:12 pm
Already enjoying the sense of humor you’ve brought in your first post. Welcome to the blogosphere!
Geoffrey McGovern - February 2, 2007 at 11:16 am
How much of this is a reaction to Bragg v. Linden Research?
Donald Braman - February 2, 2007 at 12:02 pm
Hey Geoffrey, I’m guessing it has little or nothing to do with it. My sense, for what it’s worth, on that case is that Bragg admitted to employing what, in most MMORPGs is called a “cheat”, but which in SL amounts to ripping folks off. Bragg’s argument is, essential, that the code supplies the rules. LL argues that the rules go beyond the code and require more general adherence to fair conduct.
Alan Childress - February 2, 2007 at 8:25 pm
Let me second Miriam Cherry’s opinion, and I look forward to reading more of you, as you begin the actual Second Life of blogging.
Leave a Reply