Petition to Linden Lab on the Policy of Trademark Enforcement

Introduction

Linden Research Inc., a company incorporated in Delaware, United States of America (“Linden”), doing business as Linden Lab®, developers of the Second Life® virtual world platform, owners of not only the Second Life® registered trademark (in the US, Europe, and other countries), and the eye-on-hand logo, but also of several recently registered trademarks (including, but not exclusive, to the words “SL”, “SL Grid”, “Second Life Grid”, “2nd Life”, etc.), has launched, in May 2004, the “Second Life® Fansite Toolkit”, which was later reinforced with referral programmes like “Viva La Evolution”, to positively encourage the widespread use of Linden’s trademarks, so long as it was quite clearly displayed that no infringement was intended, and a disclaimer to non-affiliation to Linden.
A direct quotation of the previous accepted use includes the following paragraph:

USE OF SECOND LIFE MARKS

While you are in full compliance with the usage guidelines described here, you may use the “Second Life” name on your website, as well as the related logos and graphics available at Toolkit, solely in the form described there. Additionally, you may use screenshots from Second Life to the extent that Linden Lab has the right to authorize use of the content within such screenshot, including screenshots of Linden in-world objects and Linden avatars, subject to these usage guidelines.

The full text of the acceptable use of Linden’s trademarks is published here. Three versions of the Fansite Toolkit were distributed by Linden, which included banners, logos, and a set of images, as well as a PDF encouraging their dissemination (the link is not available any more).

Under these gentle terms, users of the Second Life® platform have set up dozens of thousands of websites, blogs, forums, 3rd party services (both inside the Second Life® environment or on the World-Wide Web). The intended purpose of the “Fansite Toolkit” was not only accomplished, but overwhelmingly effective. From about 10,000 registered users in May 2004, the number of registrations climbed to over 13 million users in March 2008, and the growth continues – as well as the growth in the number of fansites related to the Second Life® environment. A quick search on Google comparing the number of times “Second Life” is referred on Linden’s own sites (9000+ results) compared to what the non-Linden sites (24 million results) shows quite clearly that the promotion and marketing of “Second Life” as a Linden product is, by far, being done outside Linden’s own feeble efforts – as it was intended.

The terms of the “Fansite Toolkit” enabled furthermore a small startup company in San Francisco, without any advertising, promotion, or little public relations in 2004, to create one of the most effectively known technologies on the Internet, enjoying raving press reviews in late 2006, and, since then, a product and an environment that cannot be further ignored by the mainstream. Like it or hate it, the Second Life® virtual world is now part of the Internet’s history. All this was achieved thanks to the huge community of very enthusiastic users of Linden’s platform, who have promoted its use way beyond Linden’s own ability to market their own product.

“Genericide”

The secret of Second Life®’s success was, however, accompanied by an adaptation of the word to describe not only Linden’s product, but a new concept that did not exist before: a community of users that generate content in a shared environment, using Linden’s tools and Linden-managed computer servers to provide an interconnected grid where this content can exist. The usage of “Second Life” was never strictly associated with the client software (the 3D viewer installed on users’ computers), the server software (running on Linden’s servers), or the communication protocol (which, until recently, was even unnamed). Rather, “Second Life” was employed, for the past four years, to describe all the above together as a technology empowering user-created content in a virtual world environment using Linden’s technology. The subtle difference has, however, huge implications. “Second Life”, as employed on the 24 million links stored by Google,(ref) describes not patented software (the Second Life® client is, indeed, free and open source) nor a “technology”, but an “environment”, a “virtual world”.

The situation is very analogous to the usage of the terms “World-Wide Web” or “Internet” (the latter having at some point been trademarked by Microsoft around 1995, with little success), both describing a certain use of several technologies, hardware, software, and telecommunications, but where no definite claim can be made on the resulting environment created by a community of users. Derivative words like “Internet Service Provider” or “Web consultant” are popularly used. The difference between those two terms is that no organisation currently managed to secure a claim to those names.

But further examples are also common, where registered trademarks have been adopted by a community of users generating content for their platforms. Thousands of sites and technologies have used the term “Mac” in their names, or even “Windows” (clear cases where the respective owners, Apple and Microsoft, have indeed solidly claimed their registered trademarks). “Mac” and “Windows” fansites abound and help the promotion of these technologies and platforms. The difference, in those two cases, is that the popularity of those technologies was heavily promoted by their owners through massive advertising and public relations. And still both companies “allow” the widespread use of their trademarked names in 3rd party websites, fansites, service providers, or even products!

Second Life®, by contrast, never enjoyed the same level of promotion by Linden. It relied on the “Fansite Toolkit” as the primary – and most successful! – way of “viral marketing”, effectively crowdsourcing the co-promotion of the Second Life® virtual world by its users. And these, obviously, were very eager to do so – since all participants in the virtual world, Linden and their users, benefit tremendously from this cooperative promotion. “Your World, Your Imagination”, Linden’s motto for their Second Life® virtual world platform, was taken to an extreme, and perhaps unprecedented, level in the history of technology dissemination.

Linden, however, now fears (probably very correctly) that the usage of Second Life® might fall under “genericide“.

Recent developments

Possibly advised by their legal advisers, Linden announced here and here that they would start as of now to aggressively discourage the usage of all Linden-related registered trademarks, thus effectively reverting its four-year old policy of co-promotion through marketing crowdsourcing. The major issue with the current population of Second Life® users is that dozens of thousands of products and services were created within compliance with the old guidelines, and there is no provision made by Linden to “grandfather” existing services now currently in existence. Almost all have no legal protection that will allow them to contest any of Linden’s claims in court to shut their services down if they receive Linden’s Cease & Desist letters. Linden’s claim to their trademarks is, naturally, factually correct, unambiguous, and entirely within Linden’s rights.

There is, however, one aspect of Linden’s claims where we feel the Guidelines are overshooting the legitimate intent of Linden Research in preserving their trademarked brands and preventing their dilution. We refer to the section “Proper Reference to Linden Lab’s Brand Names in Text“, which basically outlines how any mention of terms trademarked by Linden has to be written any text published. Among other things, it claims to make sure the brand names are only ever used with an “appropriate generic noun” of which Linden provides a list, and that “as often as possible”, down to capitalisation, spelling, elisions and contractions. In effect, this precludes any usage of trademarked terms in text in most of the forms current nowadays, and dictates to commentators, bloggers and critics how and what to write when referring to trademarked terms.

The issue, however, is even more serious. Although Linden’s prevention of the use of trademarks under the new guidelines could be contested in court, either in the US or elsewhere, possibly appealing to estoppel, as a matter of fact, Linden can – through its new Terms of Service, that all users required to sign to access their content on Linden’s virtual world – simply ban any user that Linden considers to be in violation of their trademark claims. By virtue of the same principle, Linden can simply ban any user that exerts his or her rights to free speech, nominative use of trademarked terms as laid down by US law, or equivalent rights under local legislation.

This is “doing justice with your own hands” – without laws, without trial, without a jury, without recourse. The Linden Terms of Service allow Linden to ban any user from using their services, without any reason whatsoever. Linden can, at whim, delete accounts and content (even copyrighted content) from any user without a complaint.

Granted, complaints can be filed against Linden – but in a court of law. In at least one case (Bragg vs. Linden), a user of the Second Life® world managed, through a lawsuit, and with a settlement agreement, to get access to his content back. But this requires effectively users to sue Linden in order to get their access back, no matter if they are or not violating Linden’s trademarks. Linden does not require any impartial judgment to validate a user’s claims on the lack of violation. Linden can safely ignore their four-year-old policy and revert their decision at whim – because they can ban accounts that refuse to comply with their new Terms of Service.

In effect, Linden is able to enforce their own interpretation of the usage of their trademarks by banning all content they view as “threatening” to their claims on registered trademarks, no matter if it is displayed inside Linden’s virtual world or anywhere else on the world. Linden’s decision to ban avatars and remove content is unilateral and not appealable unless a user is willing to sue Linden in a court under the jurisdiction of the State of California.

This total reversal of Linden’s policy threatens to shut down most (fortunately not all) of the sites providing 24 million links to Linden’s products and services; it threatens to deprive Second Life of hundreds or thousands of 3rd party services, websites, fan sites, blogs, Second Life®-specific media, artistic and cultural developments, educational and research efforts – not to mention thousands or dozens of thousands of the most energic “evangelisers” that have co-promoted Linden’s products and technologies in the past which might, in less than three months, see their accounts banned and their content deleted with little or no hope of appeal.

Open petition to Linden Research, Inc.

The community of users of the Second Life® world always recognised, beyond a shadow of doubt, Linden’s full right to its registered trademarks, which were almost always duly credited, and clearly stated their non-affiliation with Linden and that they had no intention of infringing in any of Linden’s rights or claims to the trademarks. Some of those trademarks were never disputed, for several years since their registration and use by Linden, and Linden’s claim to them is solid and universally accepted world-wide. Linden, in return, gently condescended to a limited usage of their registered trademarks for specific purposes, well stated in a clear document (the “Fansite Guidelines”). The very few exceptions where abuse occurred could be effectively dealt with by Linden’s own legal advisers and were very reduced in number.

It is our belief that the extreme switch to the complete opposite of what has been actively promoted in the past four years is not a good marketing strategy – effectively, fighting off, one by one, all the most energetic promoters of Linden and their products, shutting down their right to talk and co-promote Linden’s technology and environment, ban their accounts, and remove their content. A four-year policy grants (at least under estoppel) the large community of enthusiastic supporters the moral right to request from Linden a better model of co-promotion, one that is fair and balanced, protective of Linden’s legal rights as valid owners of their registered trademarks, but also that allows “fansites” to continue to spread and promote Linden’s products without fear of litigation.

We thus propose the following:

  1. Accept that, by introducing the “Fansite Guidelines” four years ago, Linden effectively allowed co-branding and co-promotion of their registered trademarks, so long as these were displayed on “website[s] created and maintained by residents or other devotees of Second Life®, with content primarily focused on some aspect of Second Life.” and had no other purpose. These “Fansite Guidelines” lead to fair expectations (under estoppel) of goodwill of Linden towards a fair use of their trademarks without intention to infringe on any of Linden’s rights.
  2. Rewrite, but not eliminate, the “Fansite Guidelines” to be more strict, but still allow the usage of Linden’s trademarked words as part of the co-promotional effects, accepting that their existence in no way invalidates Linden’s claims on their registered trademarks, but only serve as a vehicle for promotion and marketing.
  3. Require that all such websites register with Linden and formally accept the Guidelines (very similar to the request for the display of the “inSL” logo). Remember your international audience, too, and provide translations as well.
  4. Reinforce the duty of all websites under the “Fansite Guidelines” to be strictly compliant with these, or face a Cease & Desist letter/Takedown notice.
  5. Request to all owners of such websites a clear display of their non-affiliation with Linden or its subsidiaries, stated clearly and unambiguously.
  6. Reword the statements of the Brand Center, which currently states that no requests for the usage of any of the trademarks (with few exceptions) will be taken, and that most emails will never be answered (or even read). Instead, work on a case-by-case basis, grandfather existing products and services, and work with organisations, groups, and companies owning those websites to make sure they clearly comply with the Guidelines.
  7. Request assistance from the users to locate, identify, and report websites where your Fansite Guidelines are not in compliance, or their non-affiliation with Linden is not being clearly and unambiguously stated, or where your registered trademarks are illegally used. Deal with each case separately and encourage first the non-compliant websites to voluntarily display conforming information, and threaten with a Cease & Desist or takedown letter if they refuse.
  8. Remove the threat to ban avatars from users that have inadvertently ignored (or misunderstood) the Guidelines. Instead, warn them and give due notice of their lack of compliance with the Guidelines, encourage them to sign on and register their sites, and validate their compliance after the warning.
  9. Continue to invest in the world-wide co-promotion of the “Second Life®” brand by launching different levels of “affiliation programmes”; “inSL” is a good start but a very weak one with limited value (no aggressive promotion by Linden of the logo and word).

We would also request Linden to further clarify the potentially censurous policy towards residents implied in the guidelines in conjunction with the Terms of Service:

  1. Clarify that the rules and policies outlined in the brand guidelines under the heading of Proper Reference to Linden Lab’s Brand Names in Text do not apply to cases covered by rights of free speech, including but not limited to nominative use of trademarked terms under US law and equivalent rights conferred upon users of the Second Life® service by local legislation.
  2. Clarify that Linden Research does not intend to ban or threaten to ban users exerting the rights delineated above, independently of the contractual relationship created by their usage of the Second Life® service.

We feel that the above proposal, if correctly implemented, and duly promoted, will not only reinforce Linden’s claim to their registered trademarks, but positively encourage their further widespread in all media, without hurting the millions of hours spent in the past year by dozens of thousand of users to promote and disseminate Linden’s products and services world-wide.

Acknowledgements

I would like to thank the following residents, who helped fleshing out the above document, provided insight, comments, and rewriting of several sections, as well as some minor legal advice.

Cat Magellan and Ana Lutetia, for their encouragement in writing the petition
Rheta Shan, for the extensive revision and adding several sections and changes
SignpostMarv Martin for comments and more external links
Jamie Palisades, for comments on estoppel and genericide
iAlja Writer, Tateru Nino, and several others for taking a look at the document and making some private comments
PalUP Ling, for the T-shirt )(and his promotion)
The unofficial community of Second Life® residents on Twitter, for a lot of comments, input, and ideas
An even larger group of bloggers that wrote about the issue, providing lots to think about, and including, but definitely not limited, to the following articles:
http://www.vintfalken.com/insl-your-world-your-imagination-our-trademark/
http://sl.governormarley.com/slpress/?p=27
http://codebastardredgrave.com/2008/03/26/so-they-owe-us-a-sl/
http://dedricmauriac.wordpress.com/2008/03/25/a-generic-post-to-avoid-copyright-infringement/
http://www.technovia.co.uk/2008/03/the-huge-kerfuffle-over-second-life-trademarks.html
http://harperganesvoort.wordpress.com/2008/03/27/sl-brand-center-followup/
http://laetizia.wordpress.com/2008/04/02/clarity-there-is-movement-there-is-not/
http://www.massively.com/2008/04/02/making-your-mark/
http://getasecondlife.net/2008/03/second-life-geral/a-comunidade-portuguesa/ (even more links here)

Robin Linden, for some early clarifications before Catherine Linden posted her article on Linden’s Official Blog
and Everett Linden for reading this document before it was publicly posted.

Permission to copy the above text, modify it, or translate it into other languages, is granted by the author.

…….

Nota: O texto publicado é o original sem qualquer alteração. E sem qualquer outro objectivo (apenas para que conste), este blogue é o primeiro blogue em língua portuguesa a publicar a Petição 🙂

Anúncios

10 Respostas

  1. A friend of mine just emailed me one of your articles from a while back. I read that one a few more. Really enjoy your blog. Thanks.

    Jason Whitmen

  2. […] Petition to Linden Lab on the Policy of Trademark Enforcement By M2life Paravane Under these gentle terms, users of the Second Life? platform have set up dozens of thousands of websites, blogs, forums, 3rd party services (both inside the Second Life? environment or on the World-Wide Web). The intended purpose of the … – https://portucalis.wordpress.com […]

  3. Been reading for a while now. Just wanted to say good job.

    Chris Tackett

  4. […] matter-of-factOwn a WordPress blog? Make monetization easier with the WP Affiliate Pro plugin. Petition to Linden Lab on the Policy of Trademark … saved by 10 others     JazzyLemmon bookmarked on 04/05/08 | […]

  5. Obrigada desde já pela publicação da petição 🙂

    Efectivamente os pingbacks funcionam, mas são “filtrados” pelo software anti-spam 😦 a não ser que sejam manualmente aprovados — o que já fiz. Desculpem o mau jeito. Desde que instalei o WordPress, já foram filtrados perto de 100,000 spams — é uma seca! — e são quase todos pingbacks e tracebacks… mas, como disse, o pingback do Portucalis já lá está!

  6. Obrigada pelo ping. Eu aprovou-a partir de moderação (lotes de links destacados como um comentário é sinalizada). Onde é que vamos assinar a petição?

  7. I would urge everyone NOT to sign this petition, as it is misled, misguided, and destructive.

    1) It is based on the false premise that blogs created Linden Lab’s success and are responsible for this putative 13 million sign-ups. They didn’t. If anything, they are a slight deterrent because so many are critical and fan the flames of disgruntled former customers. Blogs did not create the success; only the old media and advertising firms and their aspirations created it. You must be clear on that because a false notion of the blogosphere’s importance then creates a false sense of its power.

    2. The petitions makes the *absolutely awful and appalling idea” of having people file anonymous police-state-style abuse reports to Linden Lab, extending the odious and corrupt and abused abuse report system of SL out into the Internet, and helping to establish it as a bad practice in the Metaverse. Such a notion then gets LL to extend its reach out to third-party blogs it has not touched until now as it is not attempting to overreach from its domain. By setting up an equation whereby little tattletale fanboyz can report real or perceived violations, especially in score-settling against rivals, they are setting up LL to take a closer look at content, not just marks. It is already the practice of many game companies to control third-party sites content by expulsion from the games if they disparage the company or talk about other games while using the fankits.

    3. The petition sets up a very false premise, not at all adequately defended, that “Second Life” constitutes some sort of generic name like “the Internet”. It does no such thing. The presence of Multiverse, VastPark, There and many other 3-D interactive persistent worlds make it clear that one cannot speak of “Second Life” as all such virtual world activity on line. These companies would be the first to object to such a generic term for this space.

    By implying Second Life *is* so generic, the petitioners set up SL to have aspirations to take over this space and to insist all the space belongs to their generic concept. That’s just plain unacceptable. The uses of the term “Internet” or “World Wide Web” gained acceptance and currency precisely because no one company tried to gain a trademark on them or usage of them regarding its product. In fact, by demanding a special exemption for fans and dedicated loyalists of LL to use the “generic term” through restrictive registration procedures, but denying it to others unless they, too, become loyalists and give away their rights through registration

    4. This petition completely overlooks the worst thing about this policy, while exaggerating other elements unnecessarily (you can talk about Second Life on any blog without putting up some sort of boilerplate about the trademark or using “TM” everywhere). And what is overlooked is that once you decide to register your SL trademark with a name like “SL Dress Fashion” and once you register your website under YOUR notion, of “Second Life Dress News”, then you *forfeit your right to register your business in real life*. You are then damned to remain a toy business forever, never able to register either DBA name or mark.

    o Finally in registering your SL business or, under your plan, Second Life name/domain/business, you also, under their existing rules which you can’t commented at all on this petition, forfeit your right to use the same name on other platforms, i.e. Multiverse. That’s unacceptable.

    So what we get out of Gwyneth’s petition is, rather than “freedom to go back to the status quo ante” is in fact a worse scenario with more control:

    o more scrutiny from LL and overreach to third-party sites
    o the spread of the KGB-style informants’ culture to the rest of the Internet
    o the loss of our ability to register businesses
    o the loss of our ability to take them to other platforms

    Give this up please. If you must, change your name from “Second Life” to SL; register your virtual business if you don’t plan to leave SL to RL; if you do plan to spread to the rest of the Internet, find a new name.

    Or maybe a new platform.

  8. Prokofy, Prokofy. You’re not old enough to have been a brother to McCarthy, but I think you’ve read too much George Orwell in your youth.

    1) Your claims of a “false” premise is correct for the first few years of SL’s existence, and it can be directly correlated to the sign-ins per day. When only 1-2 new users registered for SL, any news on the media immediately increased the login rate to 50 or more. So, yes, there was a correlation there.

    Since logins are free, however, and the number of daily sign-ins is in the 10-15,000 range, there is no correlation on the news on the media with the number of sign-ins — except for some dramatic cases (like the first episode of CSI:NY — which is, strictly speaking, not “news”) and, of course, at a local scale. When Saxo Bank had their launch in SL, with 500,000 watching it on the Danish TV, 5,000 Danes registered to SL on the very same day. But these are exceptions.

    In its own history, LL only emitted about 30 press releases over a 9-year period. You can see them at http://lindenlab.com/pressroom/releases.
    Philip gives an “exclusive” interview twice a year at most. Other Linden employees do even less. These went directly to the RL media and were picked by them. But most “happenings” in SL come from the blogosphere — which, in turn, push the news to the RL media. In my country, almost all news about SL are pushed from bloggers to friends in the newspapers. There are almost no exceptions, and the few that pop up get everything so wrong that they effectively prevent people from joining SL. In fact, I hardly believe that you can claim otherwise — you’ve pushed SL news to your fellow journalists, too, and pointed them to your blog (and other people’s blogs). That way, LL does not need to bother about dealing with the RL press at all. The bloggers do that for them. Every blogger is a self-styled evangelist. You might have noticed that Reuben’s position as “Official Evangelist” was dropped at LL after Reuben left to found MoU. It makes sense — LL has probably the largest group of amateur evangelists spread across the five continents, and they’re doing all the work for free.

    But there is more. Press in the media do not come from Linden Lab but from companies that enter SL. They do their own promotion of SL in the media and don’t rely on LL to do it for them. But by doing so, they’re also writing things like “[Brand X] Second Life’s office” or “Second Life [Brand Y] Opens In SL”. They’re promoting conferences called “Education in Second Life”. They do workshops and seminars on “Your Second Life Business”. They teach classes on “Second Life Programming”. Under the new rules, LL would be able to ban the avatars of all corporations, universities and organisations that were not too careful about the usage of LL’s product and service trademarks. Which would, of course, be ridiculous.

    2) The suggestion is mostly to extend the inSL programme to be more encompassing. LL is rather vague about how the inSL programme is actually going to work. I’ve registered for it, and never received an email back — I’ve checked, and I should have gotten one. So what does that exactly mean? What is the logo for? To show my support of Linden Lab and their products? An official stamp of validation? A request for LL to scan my content and approve it? A guarantee that I’m fully complying with LL’s ToS and don’t need to fear their random banning of my avatars?

    I don’t know, and I asked, and the answer was “unclear”. So, these are a few suggestions of what this “inSL” programme might be — a registration to guarantee compliance to more strict guidelines. I’m fine with that, but I also wish to know why some people are ‘forced’ to adopt these guidelines while others are simply able to do whatever they please with LL’s trademarks because they’re avoiding detection. That’s quite unfair. In fact, the services, websites, and blogs with the highest visibility — those that will be actively promoting LL most — will be the first to be targeted.

    What we want instead is protection from the ToS. We want to continue to promote SL and LL and be sure we’re not going to be banned, without having a lawyer on stand-by to fight off lawsuits from LL and sue them every time they attempt to ban people that are promoting them. A way to do that is simply by creating an “affiliation programme”, like almost every other company does. “inSL” seems to be that, or probably might be that, but it requires clarification.

    3. Microsoft was the most famous company attempting to trademark “Internet” (they were not the only ones) but, at that time, they failed to do so. I’m sure that “World-Wide Web” was attempted to be trademarked often as well.

    There are actually two major reasons for LL’s change of the trademark usage guidelines. One is genericide — yes, indeed, competitors are setting up ads on Google AdSense and other such systems that promise you to “Enjoy your Second Life on There.com” or “Buy your Second Life clothes in IMVU”. These pop up on searches for “second life” — but drive traffic directly to LL’s competitors. These have to be fought legally, and LL has to disallow them to continue to exist. As “Second Life” becomes more and more employed as a generic term — and they encouraged us explicitly to do so for the past 4 years — it will be harder and harder to prevent the service mark not to be a “generic” term. LL has a long fight in front of them. However, they also have a horde of evangelists, bloggers, 3rd party sites, SL-related forums and services that are closely aligned with LL on this battle. Nobody wants that “Second Life” is used by the competition to attract users for their virtual worlds — we want those users in Second Life, where they’re useful for us (and not only for LL). Remember that LL is not any more the company getting the largest share of income directly from Second Life (I believe this was predicted in 2006 and many smiled upon the claim). In 2008, LL is just one of the major players earning income from SL, but several others do the same — and with more profit. None wish the trademark to be used for anything that is not LL’s product!

    The only thing that we need to help LL in the fight is an effective means of being able to push the trademarks as being, unambigously, LL’s — without, at the same time, violating ToS and getting banned for it.

    The second issue is dilution. According to some rumours coming from LL, when they launched “Second Life Grid”, a lot of people never knew this was a product of Linden Lab, since they’re used to things like “Second Life Profiles” or “Second Life Developers” or “Second Life Network News” etc. which are none products by LL, affiliated with LL, or promoted by LL. So anything that is called “Second … Something” these days, while automatically connected to Second Life, it’s also immediately shrugged off as not coming from Linden Lab. This is, of course, worrying for LL and they have to stop it. They have recently registered “Second” as their trademark, so it also means that things like “Second Thoughts” or “Second Tense” will have to go, too.

    4. Your point is well taken, and you’re completely right — it escaped our notice. We should add it to the text of the petition after the next revision. (The issue about using the silly symbols is not even mentioned, since those “cries of revolt against using ® and ™” come from ignorance) Thanks for pointing it out. I wouldn’t say it’s the crucial point — the crucial one is that LL is able to enforce their tardemark rights by banning avatars first and ask questions later — but it’s definitely as important as all the other issues raised.

    When defining a proposal, both sides need to come to a compromise. What does LL want? More control of their trademarks; abolishing the previous status quo; be able to deal with infractions swiftly; reinforce the claim on the trademarks; fight genericide; fight dilution; fight abuse by competitors.

    What do the “evangelists” want? To continue to promote LL and their services and products; demand that LL fights their claims in court, and not by acting as police, judge, jury, and executioner by banning first and asking questions later. Not everybody is able to hire a Californian lawyer to be able to establish “fair use” of the LL’s trademarks after having been banned for promoting a “Second Life Conference on Education and Social Issues”, for instance. LL should fight with all their legal weapons, but do so fairly — send cease & desist letters, takedown notices, and, if necessary, file lawsuits; not by banning.

    So what might be a compromise? An affiliation programme, where everybody interested in continuing to support the ongoing promotion of Second Life and Linden Lab is validated by LL’s lawyers to be compliant. Registration for your website (or product) under the “inSL” programme might be an alternative. There might be others. But it also means that there should be a mechanism allowing people to voluntarily submit to LL’s guidelines for co-promotion in some way. The current model — an email that is swamped by requests, that doesn’t answer any requests since October, and when it does, it’s almost always “no” — is not a functional one. We need something better. And we’re willing to sit down with LL and propose a model that is satisfactory both to them and to us.

    Fortunately there are hundreds of very successful models out there that can be used as inspiration. Even companies like Microsoft and Apple, with a huge budget to spend in lawsuits, are tolerant with their fans and allow them their fansites, within limits and guidelines. We’re not asking more than that. The difference, however, is that if someone registers a site called “welovemicrosoft.com” and Microsoft has a problem with that, they don’t stop your computer from getting Windows Updates — they go to a court and file a lawsuit against you. LL, however, is using banning as a very effective means to get what they want without even sending a Cease & Desist letter. And this is unacceptable.

  9. Prokofy: I agree with you in several of your posts, but in your comment to this one (my post is only a copy/paste of Gwyneth post), I can´t agree with you.

    You have a very good answer in the previous comment by Gwyneth and you can find another answer at: http://getasecondlife.net/2008/04/second-life-geral/another-side-to-the-issue-prokofy-neva/

    It will be good to read more comments from you in this blog 🙂

  10. Gwyn, you will never persuade me that bloggers created the media for LL. It’s only a tiny portion. Not my blog. Not your blog. Not the Herald. Not even Hamlet nee Linden Au. The RL media googles and finds other RL media. They don’t read blogs. Oh, some of the more specialized tech press may get down in the weeds of a blog — I’ve had that happen (remember Wired and Technology Review?) but all in all, the press has to interview people, and people they get from LL itself, or from poking around looking at past interviews — existing press coverage then feeds new press coverage — that’s how you can get concoctions like Benjamin Duranske.

    And even if you could somehow convince me that blogs made the signups (you can’t), how does that work then? This supine fan base that fanned this company then begs for a scrap at the big people’s table? I mean, how silly is that? You’d be reinforcing a really awful paradigm — residents perform obsequious and slavish labour for free, get whacked, then beg some more, and then get a crumb. Ugh, Gwyn, don’t drag the rest of us into your grovel here.

    How on earth could you even mention the concept of LL scanning content — they don’t write it; they don’t ask for it. The only “content” is the mark itself of the name “Second Life”. Other than that, they do not clear content. So don’t put ideas in their head. Don’t look for a response. Don’t ask them to take some ongoing posture to all this. You registered or didn’t — now shut up. That’s it. I plan to do absolutely nothing more. So should anyone. I complied — and the story is over.

    This is a difference between the common law approach, which tends to make more universalist law that is interpreted in each case as compliant, by precedent and civil law, which tries to make more elaborate and precise law to guide every single case as it occurs.

    See the difference? My posture is: let them come after me. The Herald goes even further: we won’t register, let them come after us. Let them mount a legal argument; we’ll mount the fankit argument, and see how it plays out.

    Your posture is: how can I scurry to get them to give me a ruling now, that will guide every instance. We don’t need rulings for every instance. We don’t need more freedoms taken away. Trying to force a clarification from them is bad for all of us.

    Gwyn, try to grasp that all of this is taking place in America, where the legal system and the culture of litigation is very, very different. Nobody will do a thing. They will wait for LL to find its ass with both hands and sue, if it has a case. The Herald doesn’t think it has a case. Reuters doesn’t think it has a case. I think it *might* and without the strength of either of those behind my little website, I complied with the letter of the law. and that’s what you and others should do: a) register and cease further action b) don’t register and wait for them to come after you.

    Trying to get a pre-ruling is just sycophantic FIC suck-up nonsense. Don’t do that.

    I think the readiness with which Robin Harper said they would fight trademark “confusion” by legal notices in RL rather than SL bannings lets you know that this will all drag out a rather long time, with possibly many cases and twists and turns.

    The main objective here is not to give Linden a single reason to think it can police third-party sites for content, something it has thankfully refrained from doing.

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