As citizens in a digital world, it is nearly impossible not to violate copyright at least once every day. Some of it unintentional, some of it admittedly intentional.
I understand that Linden Lab has opened up a messy can of IP worms for themselves by purchasing xStreet, and I think anyone with an ounce of common sense could have told them that. By doing so, a privately-held corporation with millions of real-world dollars in annual inworld revenue became an active distributing agent for every item sold on the service – licensed, grey-area or decidedly black market. Suddenly, it wasn’t about a hobbyist at home creating a non-tangible virtual replica of a Gucci bag or BMW – it was about the owner of the Internet’s most profitable metaverse making themselves a target by interjecting themselves directly in the purchasing process – and earning a commission on every sale. In buying xStreet, Linden Lab became a profitable blip on the radar of corporate legal departments.
But let’s be rational. Someone photosourcing a Gucci bag and selling it in world is not in the same league as someone who counterfeits a real, tangible Gucci bag and attempts to sell it to you out of the trunk of their car. You can’t export the XML for a virtual Gucci bag and turn it into a physical bag you could carry with you out the door after you log out. It is a representation of a physical object and nothing more – and unless that representation endangers the integrity of the brand, as I believe was the case with pasting the Taser name on a line of virtual sexual restraints – the virtual designer is providing free product placement. I’m quite convinced that this is why we have never seen the threat of a high-profile corporate lawsuit before Taser – SL residents save them the footwork. Honestly, what corporation would hire someone on a graphic designer’s salary to create branded virtual products for them when there are plenty of hobbyists doing the same thing for the equivalent of a dollar or two on every sale? In real-world numbers, there is absolutely zero return-on-investment for corporations, save for the value of the exposure of their brand within the environment.
What I think everyone needs to maintain is a sense of perspective. Apples are apples, and oranges are oranges and Second Life is a sixth-world economy. With very few exceptions, we do what we do for the love. And while I would much rather see someone create something truly unique and original, the fact remains that we have been programmed to respond to corporate and cultural iconography. Right or wrong, these icons provide us with a sense of comfort. There is a reason why people convince themselves that a store-brand is inferior to a name-brand – there is significance in the image. In a very limited way, it’s almost a religious experience. Even if you put the exact same product in two different boxes, one with a brand-name and one with a generic, people would insist to the point of argument that the branded one was better.
Our virtual spaces, being an idealized extension of our physical spaces, are going to reflect this as well. It’s inescapable. And if Linden Lab wants to strip Second Life of all unapproved branding, I honestly believe they are going to strip it of some of its comfort as well. “Avatar-Cola” branded products are not going to sell – except, perhaps to immersionism purists – precisely because there is no frame of reference for it in our lives. It doesn’t have a flavor. It doesn’t comfort us the way Pepsi or Coke or RC might.
And, quite simply – an intangible digital representation of a physical item is art.
I am always going to defend the intellectual property rights of SL residents with more ferocity. Because when we’re talking about content theft inworld, we are comparing apples and apples. Someone who rips skins or replicates hair is counterfeiting in much the same way as someone counterfeiting those real-world Gucci bags and selling them out of the back of his car. Like is counterfeiting like, and no artistry whatsoever is involved – only a hacked client or a replicator. And while there are legitimate uses for replication tools, that which is defensible is blotted out by the abuse of those who see SL as nothing more than an opportunity to make a few quick bucks.
A consistent, hard-and-fast application of copyright law in Second Life would mean that almost every single club and live music venue inworld would be forced out of business. With the licensing required to play and perform copyrighted music, not to mention the per-stream, per-song royalty fees that must be paid, tier fees would be the least of club owner’s financial worries. Singers and musicians would be limited to original compositions only. If this seems extreme, consider the fact that nearly any major-label musician who burns a copy of his or her new CD for a friend is engaging in copyright infringement – most rights to the physical recording belong to the record label in “perpetuity” – forever. Even singing “Happy Birthday” as a performance of the song in a public setting requires a license from ASCAP or the Harry Fox Agency. (This is why you never hear it sung in restaurants – which is insane, but that’s the world we live in.)
I understand LL’s desire to remove unauthorized trademarks from xStreet, and they should have realized the legal minefield they were stepping into before absorbing it. But to advocate for the deletion of any item that may conceivably resemble something in the physical world is, in my opinion, going just a bit too far. I think LL’s acquisition of xStreet and OnRez was a short-sighted attempt to neutralize competition, and gain and assert dominance of e-commerce in Second Life. (Of course, there’s the matter of tightening control over the currency exchange, but that’s for someone else to write.)
Every time the duration of a copyright is extended, it happens right about the time that Mickey Mouse is about to enter the public domain. Food for thought.
Tags: copybot, copyright, infringement, trademark, xstreet