Business Communicators of Second Life®

Fair Use Reframed in Era of Consumer Generated Content

Conventional wisdom (and big media) would have us believe that using copyrighted material in today’s consumer generated media is just plain illegal – end of story.

Well, not so fast.  While some are strong-arming social online sites to remove consumer media for copyright violation, a good percentage of that CGM may very well be legal under the doctrine of “fair use.” 

An engrossing study, Recut, Reframe Recycle, just released by the Center for Social Media at American University points to a wide variety of consumer activities that are actively incorporating copyrighted material – and it highlights how in many cases these are perfectly legal and can be considered “fair use.”

“Fair use” is the right to legally use copyrighted material under certain circumstances, and more broadly, according to the study, when the value to society is greater than the value to the copyright holder. 

The study authors Pat Aufderheide and Peter Jaszi  categorize our collective CGM activities into: satire, parody, negative commentary, positive commentary, discussion-triggers, illustration, diaries, archiving and remixes and mashups.

In essence, Auferheide and Jaszi illustrate, through the lens of online video making, that new “consumer maker” online activities are often “quoting” copyrighted material to create new pieces of popular culture, which falls under the “transformative” definitions of fair use.

One of the most salient points in the study is that fair use is not something written in the stone tablets of copyright law.  That it necessarily evolves in concert with our culture:

“The provisions of the Copyright Act codifying fair use were intentionally made non-specific, in an acknowledgment of the constantly changing state of cultural production.”

I’m not a lawyer, but I have to believe these same ‘transformative” and “cultural production” concepts might apply equally, if not almost more persuasively in MUVEs.  Virtual worlds like Second Life are cultural production down to the very core and that norms there could push "fair use" into new interpretations.   

I’d be most interested if Benjamin Duranske over at VirtuallyBlind and other IP experts would weigh in on the study and comment on its application to virtual world CGM production.

Most importantly, the study warns that our emerging participatory media culture is at serious risk with current industry practices - including the sites that comply unquestioned - aimed at shutting down what may be fair use consumer activities in the name of piracy control:

“Legal as well as illegal copying could all too easily disappear. Worse still, a new generation of media makers could grow up with a deformed and truncated notion of their rights as creators.”

Know your rights as a "maker." (2 links)

To protect the hands, attention, and minds that feed them, content creators need to examine ways to adapt to IP in a shifting media culture.

The Recut, Reframe Recycle PDF and web page include a list of the researchers' top five videos.  The Center for Social Media has posted a video, titled Remix Culture (3.5 minutes) that is itself a mashup of "unauthorized" material, hoping to stimulate conversation on their blog.  The video is also downloadable.

January 5, 2008

Vitual Law Q&A Transcript: Benjamin Duranske at SL Business Communicators Meeting

The time flew by, but this was one fascinating discussion, thanks to IP attorney, founder of the SL Bar Association, and Virtually Blind blogger, Benjamin Duranske, aka Benjamin Nobel.  We covered a wide range of topics related to activities in Second Life and Benjamin kept up amazingly well with the flood of questions. 

He promises to come back and meet with SL Business Communicators in a few months - and we're going to hold him to it!  Be sure to watch for announcements on his return.  It is well worth your time to join in.

Thank you, Ben, for a thoroughly enlightening session.   I encourage everyone to  read his blog regularly.

And thank you to Edelman who allowed us to use their island to meet this month.

The full transcript follows.  The "You" references are me,  Znetlady Isbell.

Introduction

[18:09]  You: Hello everyone. I think we can get started. Welcome back to Edelman Island. G24Khamr has been gracious enough to donate space for our meeting tonight.
[18:09]  You: He couldnt' be here - but we have Edelman to thank for the space.
[18:09]  You: We are really lucky to have Benjamin Duranske with us tonight. He is a RL intellectual property attorney, and the founder of the SL Bar Association.
[18:10]  You: He writes the unbelievably fascinating blog, Virtually Blind, http://virtuallyblind.com, and is here to talk about some interesting legal topics in virtual worlds - and answer your questions as well.
[18:10]  You: I prepared a few questions to get us started. Please feel free to ask your own as we go along, but let's try to not talk over each other too much in chat. I will be monitoring the chat to keep track of any questions we may have missed, so once you've asked a question, wait before asking again as I hope I'll be keeping track and make sure we get back to it in case we move past it.
[18:10]  Benjamin Noble smiles.
[18:11]  Benjamin Noble: Thanks, Znetlady.
[18:11]  You: Welcome Benjamin and thanks so much for taking the time to be with us!
[18:11]  You: Benjamin, how about if you start by telling us a little about how and why you got into SL and what interests you about the legal issues in virtual worlds.
[18:11]  Benjamin Noble nods. Thanks. I'm happy to get the chance to talk to your group. I actualy read the group's blog regularly.
[18:11]  You: We love SLBCers!
[18:12]  Benjamin Noble: Let me start with this: there are probably more questions than answers in "virtual law" right now. So I'm going to take a stab at whatever people want to ask, but there are a lot of holes in this picture.
[18:12]  Benjamin Noble: There are pending cases, and very few decisions. It's a fun time to be looking at these issues, and I'll make my best guesses. So let's take some questions -- I understand you have some already, to get the discussion started?
[18:13]  You: I do - unless someone is dying to start with something else.
[18:13]  Benjamin Noble: About me...
[18:13]  Benjamin Noble: I'm a real life lawyer, though I'm taking a break from practice and writing a novel (not related to virtual worlds).
[18:14]  Benjamin Noble: I practiced intellectual property law in San Francisco with Kirkland and Ellis for a few years before this break.
[18:14]  Benjamin Noble: Mostly patent, some copyright, trademark, etc.
[18:14]  Benjamin Noble: Folks can find me on the web under my real name, Benjamin Duranske.
[18:14]  Benjamin Noble: I'm licensed in CA, but live in Idaho. That's the nutshell.
[18:14]  Benjamin Noble: :)

IP Rights with SL Avatar Photos (Are Avatars People?)

[18:14]  You: Goldie is asking: What IP rights should we be aware of and get permissions for before shooting still or moving pictures?
[18:14]  Benjamin Noble nods.
[18:15]  Benjamin Noble: That's an easy area to be an artist in, actually.
[18:15]  Komuso Tokugawa: big issue in sl on that at the moment
[18:15]  Benjamin Noble: Your first sorce of restrictions is the terms of service for second life, more than any IP rights.
[18:16]  Benjamin Noble: But in terms of IP rights, people have some expectation of privacy as they go about their daily lives, but not all that much. So if you're writing a blog, or shooting a documentary, you're okay as long as people aren't identifiable.
[18:16]  Benjamin Noble: With celebrities, it's a little more complex.
[18:17]  Goldie Goodman: Are avatars people in that sense?
[18:17]  Benjamin Noble grins.
[18:17]  Benjamin Noble: Right to the million dollar question!
[18:17]  Goldie Goodman: Do avs have an expectation of privacy?
[18:17]  You: BTW, I will be posting this transcript so if someone wants to opt out be sure to tell me.
[18:18]  Benjamin Noble: If a real life person is already anonymized by the "mask" of an avatar, I think he or she would have a hard time arguing that a release was necessary to run a photo.
[18:18]  Komuso Tokugawa: what about uniquely identifiable avatars? [serious question] I had someone approach me recently about using photos of me in a sculpture and we are still talking
[18:18]  Goldie Goodman: It would help if Mr. Noble could hit return more often so we can ready what he is writing.
[18:18]  Benjamin Noble: Sure.
[18:18]  Benjamin Noble: Will do.
[18:18]  Benjamin Noble: Okay, unique avs.
[18:19]  Benjamin Noble: Komuso - is your private info public? In other words, do you make your real life identity known?
[18:19]  Komuso Tokugawa: yes
[18:19]  Benjamin Noble: Because my opinion (and it's just that, on this one)
[18:19]  Komuso Tokugawa: I'm both a live musician and business consultant
[18:19]  Komuso Tokugawa: have to
[18:19]  Benjamin Noble: is that courts aren't very close to calling avs people.
[18:19]  Benjamin Noble nods.
[18:19]  Goldie Goodman: yet. lol
[18:19]  Benjamin Noble: Then you have a stronger case.
[18:20]  Benjamin Noble: You have, I'd argue if I was your lawyer, the same right to privacy in your av as you do in pictures of yourself.
[18:20]  Da Etchegaray: Interesting Benjamin

IP and SL Objects (a picture of a picture)

[18:20]  Goldie Goodman: What about land and landscapes and buildings?
[18:20]  Benjamin Noble: Goldie - copyright, generally, will be what applies there.
[18:20]  Da Etchegaray: question
[18:20]  Goldie Goodman: Yes,.
[18:20]  Benjamin Noble: But I'm allowed, in real life, to take a picture of a building.
[18:20]  Benjamin Noble: (We're ignoring the TOS here, you know)
[18:20]  Goldie Goodman: But in SL, these aren't really buildings. They're graphic representations, aren't they?
[18:21]  Rocky Maddaloni: Soooo, do any of the SL TOS restrict photos & movies of either avs or buildings, landscapes, objects?
[18:21]  Benjamin Noble nods.
[18:21]  Benjamin Noble: That's the sticky thing. No decisions get close to deciding it, but if I had to guess, I think courts
[18:21]  Benjamin Noble: will view it more like a game.
[18:21]  Komuso Tokugawa: ty
[18:21]  Benjamin Noble: In other words, if Grand Theft Auto uses a famous building
[18:21]  Da Etchegaray: avatars may not be people, but sexually harassing avatars in a virtual workplace could get you in a heap of trouble.
[18:21]  Benjamin Noble: then they can be subject to copyright law.
[18:21]  Goldie Goodman: Linden Lab says we should ask permission from avs, but don't have to re landscapes.
[18:22]  Benjamin Noble: If you take a picture of one here, it's a picture of a picture, basically.
[18:22]  Goldie Goodman: But I don't agree w/LL on that one.
[18:22]  Benjamin Noble: Da - yes. Mostly due to the fact that courts will view sexual harassment in SL the same way they'd view it over any other chat client.
[18:22]  Goldie Goodman: Yes, the picture you're taking a picture of is someone else's copyrighted material, huh?
[18:23]  Goldie Goodman: Under the TOS?
[18:23]  Benjamin Noble: Exactly. So there's an argument that the picture is infringing the copyright (though in some contexts, fair use will protect you).

Is Second Life Real?

[18:23]  Benjamin Noble: Let me go back a tiny bit.
[18:23]  Benjamin Noble: All of these questions
[18:23]  Benjamin Noble: have at their root
[18:23]  Benjamin Noble: one big question.
[18:23]  Benjamin Noble: Is second life "real" in some sense?
[18:24]  Benjamin Noble: That's kind of the million dollar question of "virtual law."
[18:24]  You: Can there be celebrity avatars?
[18:24]  Goldie Goodman: One could argue that it's "real" when it transfers into RL, like a photo or video.
[18:24]  Benjamin Noble: In other words, is this just a pretty chat client, or is there something more to it, so building here are *really* buildings, legally. Land here is *really* land legally.
[18:24]  Benjamin Noble: True, Goldie. That's one good line. I could see courts adopting that.
[18:25]  Komuso Tokugawa: fair use is ok imo, it's when monsy comes into the equation from products developed with the images it gets sticky
[18:25]  Komuso Tokugawa: or stickier
[18:25]  Goldie Goodman: People have a misunderstanding about "fair use."
[18:25]  Goldie Goodman: Please explain fair use.
[18:25]  Komuso Tokugawa: true
[18:25]  Rocky Maddaloni: as we CPAs say - follow the money - if SL creates RL money, it sure starts to look real
[18:25]  Komuso Tokugawa: it's broad and grey .. lol
[18:25]  Siyu Suen: Yes, what exactly constitutes intellectual property when it comes to paraphrased or designs inspired by other designs?
[18:25]  Goldie Goodman: I like that line, Rocky.
[18:26]  Benjamin Noble: I think that this is how the courts will see it, at least for a while. It's just a communications tool. So it's going to be real laws applied to this, just like it's email or a web page or whatever.
[18:26]  You: Saeya asks: Ben, can you talk a little about the difference between IP and copyright in regards to second life? I mean how is it decided on what is a digital artisic expression and what is a tool or idea?
[18:26]  Rocky Maddaloni: thanks
[18:26]  You: That might be good background for all of us...
[18:26]  Goldie Goodman: So, if I copy someone's web page, that's a no-no. Likewise, if I take a pic of someone's build?
[18:26]  Benjamin Noble: Znetlady, that gets to my big picture question.
[18:26]  Benjamin Noble: And goldie's too.

IP versus Copyright

[18:27]  Benjamin Noble: "IP" is a catchall phrase, but it doesn't really mean anything.
[18:27]  Benjamin Noble: There are discrete bodies of law.
[18:27]  Benjamin Noble: Copyright.
[18:27]  Benjamin Noble: Patent.
[18:27]  Benjamin Noble: Trademark.
[18:27]  Saeya Nyanda: I understand copyright fairly well, but if I have a product that is a tool... and someone copies it and even uses the name of my product.. how do I protect myself?
[18:27]  Benjamin Noble: Trade Secret.
[18:27]  Benjamin Noble: Those make up "IP law"
[18:27]  Benjamin Noble: So it depends on the product.
[18:27]  Benjamin Noble: Somebody here could get a patent on a new tool.
[18:28]  Benjamin Noble: Somebody could make a popular machinma movie (copyright).
[18:28]  Benjamin Noble: A brand could have a trademark.
[18:28]  Benjamin Noble: (e.g. Eros for Stroker's toys).
[18:28]  Saeya Nyanda: so basically trademarking and patents is about the only way?
[18:28]  Benjamin Noble: And someone could even have trade secrets (e.g. Darklife's code).
[18:29]  Benjamin Noble: Exactly, Saeya - there's no special rights to anything here that go beyond regular IP rights. Copyright, TM, that's what applies.
[18:29]  Saeya Nyanda: I guess though...
[18:29]  Benjamin Noble: TM, copyright, patents.
[18:29]  Saeya Nyanda: because it's digital, for me... it gets so grey because I consider most of what I make art even if its a tool
[18:29]  Benjamin Noble: And trade secrets, though that's kind of a different animal.
[18:29]  Saeya Nyanda: so i guess i'm unsure of where copyright ends in that regard
[18:29]  Benjamin Noble: My guess is that the courts won't see it that way.
[18:29]  Saeya Nyanda: definitely
[18:30]  Benjamin Noble: They already give patents on lots of different things that get executed in software.
[18:30]  Samson Francis: With the global reach of SL what country's laws will apply?
[18:30]  Komuso Tokugawa: oo..don't get started on software patents!
[18:30]  Komuso Tokugawa: lol
[18:30]  Saeya Nyanda: ty :)
[18:30]  Siyu Suen: How does intellectual property relate to the paraphrasing of another idea, a personal interpretation that is still recognizable as being inspired by something distinctive? Is it fair play as long as it's unique /enough/?

Which Law Applies in a Global Space?  Legally, View SL as a Communications Medium

[18:30]  Benjamin Noble: That's complex, Samson, but there's a whole body of law that covers that. I think it will be applied just like it is in the real world.
[18:30]  Samson's Time Is: CDT Dallas : 20:30
[18:30]  Benjamin Noble: Basically, here's what I tell lawyers in the Second Life Bar Association -- view this as pretty email from a legal perspective.
[18:31]  Benjamin Noble: The courts are not going to buy arguments that it's more than that for a very long time.
[18:31]  Goldie Goodman: How do you view email from a legal perspective?
[18:31]  You: Siyu asks:
[18:31]  You: How does intellectual property relate to the paraphrasing of another idea, a personal interpretation that is still recognizable as being inspired by something distinctive? Is it fair play as long as it's unique /enough/?
[18:31]  Benjamin Noble laughs.
[18:31]  Benjamin Noble: Like a fax machine. Like a letter.
[18:31]  Samson Francis: So then it sounds like it will be pretty difficult to protect builds and tools in SL
[18:31]  Stephen Psaltery: /em hands Goldie Legal Spectacles.
[18:32]  Goldie Goodman: ty
[18:32]  Benjamin Noble smiles. It's all just communication in the eyes of the law.
[18:32]  Benjamin Noble: Samson -
[18:32]  Benjamin Noble: I don't think it's going to be much harder
[18:32]  Benjamin Noble: than in the real world. Maybe easier, since there are software tools
[18:32]  Benjamin Noble: to help you enforce your IP rights.
[18:33]  Benjamin Noble: Okay. To the last Q. from Znetlady.

Fair Use versus Inspiration versus Copyright Infringement

[18:33]  Goldie Goodman: So, if I take a picture of Yankee Stadium in SL, do I need permission of the sim owner?
[18:33]  Benjamin Noble: Goldie - it depends on the context. I run stuff like that on my blog all the time, but I view it as fair use in the media (there are a lot of fair use exceptions).
[18:33]  Benjamin Noble: That
[18:33]  Benjamin Noble: is one of them.
[18:34]  Goldie Goodman: Under what terms of fair use? I'm doing it for profit.
[18:34]  JimmyJet Fossett: Good to hear that as I snap a pic, LOL!
[18:34]  Benjamin Noble nods. There just isn't an answer there.
[18:34]  Goldie Goodman: Isn't fair use mainly applied to educational use, news reporting, etc?
[18:35]  Samson Francis: So much of what is being built in SL is 'inspired' by others' work -- when does inspiration become an ownership issue?
[18:35]  Benjamin Noble: Samson (and this goes to Znetlady's Q. too) --
[18:35]  Benjamin Noble: It's a sliding scale, generally. Let's take a specific example.
[18:35]  Benjamin Noble: Somebody makes a dress in SL.
[18:36]  Benjamin Noble: (A) uses copybot to steal it.
[18:36]  Benjamin Noble: (B) makes one just like it on her own.
[18:36]  Benjamin Noble: A, if she admits it, is pretty clearly in violation of the designer
[18:36]  Benjamin Noble: designer's copyright. (if she doesn't admit it, but somebody can prove it, that's as good).
[18:37]  Saeya Nyanda: C.) uses a real world Versace picture and creates the dress based on that and no one on SL copies it (i wanna know this one too)
[18:37]  Benjamin Noble: B is *also* in violation of the copyright, and if she admits it, that's clear. If she doesn't admit it, then you get this complex trial to determine if it was copied.
[18:37]  Benjamin Noble: You have to show similarity and access.
[18:37]  Benjamin Noble: And it gets pretty complex (and expensive).
[18:37]  Siyu Suen: what about d), if she makes her own interpretation and adds or removes various aspects or enhances it to be a different creation, but similar?
[18:37]  Benjamin Noble: Okay - C.
[18:38]  Benjamin Noble: Versace has a case against C.
[18:38]  Goldie Goodman: OK, here's another take on it.
[18:38]  Stephen Psaltery: What's the difference between a dress in second life and a piece of software? They are both chunks of binary data. Are they both bound by the same sections of IP law?
[18:38]  Benjamin Noble: (assuming the design is distinct enough to merit protection -- also a big argument in a lot of cases like this)
[18:38]  Samson Francis: Animation is a key aspect of SL -- we all learn from looking at others scripts -- at what point does a script become an ownership issue?
[18:38]  Benjamin Noble: Let me take D, then Stephen
[18:38]  Goldie Goodman: I buy the dress that was an original creation, so now I own the dress in my inventory.
[18:39]  Goldie Goodman: Can I take a picture of it?
[18:39]  Komuso Tokugawa: What about someone recording an audio stream of a live music performance and trying to sell it? [sounds like a dumb q, but interested in answer]
[18:39]  Benjamin Noble: D - it comes down to how a jury feels. If the designer admits copying, it's pretty easy, but otherwise, it's a matter of interpretation. If it looks sufficiently similar and they can prove the designer had access, there's a case.
[18:40]  Benjamin Noble: Okay, to stephen's Q.
[18:40]  JimmyJet Fossett: None of these questions and points are dumb at all
[18:40]  Saeya Nyanda: ah okay
[18:40]  Siyu Suen: aaaaaah
[18:40]  Benjamin Noble: (THESE ARE GREAT Qs!)
[18:40]  Benjamin Noble: Stephen
[18:40]  Benjamin Noble: That is totally up in the air, to be honest.
[18:41]  Komuso Tokugawa: or any audio stream for that matter, not we are moving into voice
[18:41]  Stephen Psaltery: people talk about virtual dresses and real dresses like they are bound by the same type of law, and yet a piece of code is different? How is code different from a virtual dress? in both instances an image maintains all the data of the original.
[18:41]  Benjamin Noble: My best guess is that courts will view it as "art" generally as opposed to as a "dress" or a "barn" or whatever. They've done that in other cases with computer graphics.
[18:41]  Komuso Tokugawa: it's not just images
[18:41]  Stephen Psaltery: I mean, benjamin, shouldn't computer code be treated the same as a pretty picture?
[18:41]  Benjamin Noble: The best point of separation is this: you can only copyright something that is "fixed" in a medium.
[18:41]  Goldie Goodman: And I can't legally copy someone else's art in RL.
[18:42]  Benjamin Noble: So you can't really copyright a hairstyle (at least, that's the general theory).
[18:42]  Goldie Goodman: without their permission or under fair use.
[18:42]  Benjamin Noble: But in SL, a hairstyle IS fixed in a medium.
[18:42]  Benjamin Noble: I think that's going to be an issue that courts have to deal with.
[18:42]  Goldie Goodman: May I ask everyone in attendance...
[18:42]  Stephen Psaltery: so you can't copywrite code, because it can change, you'd have to patent it?

Will You Sue Me?

[18:42]  Goldie Goodman: if I shoot a film on your sim, and I'm being paid by a big corporate client,
[18:42]  Goldie Goodman: will you sue me?
[18:43]  Benjamin Noble: I'll answer that for most of you -- you won't, because it will cost too much.
[18:43]  Siyu Suen: (well i'd want to know about it and what it was being used for)
[18:43]  Goldie Goodman: rofl
[18:43]  Goldie Goodman: Exactly, Siyu.
[18:43]  Rocky Maddaloni: It depends on your use - if you profit from my work, I might want a share
[18:43]  Goldie Goodman: That's why I always ask permission before I shoot you. h aha
[18:43]  Benjamin Noble: We're not cheap. ;) But it is going to come up pretty soon when a commercial sim decides to push the issue.
[18:44]  Benjamin Noble: Shoot at the new Playboy sim if you're interested in testing the theory. ;)
[18:44]  Goldie Goodman: The other thing, Ben, is registering the copyright or getting the patent or trademark registered.

Trademarks, Copyrights, Patents and Registration

[18:44]  Goldie Goodman: If it's not registered before the infringement occurs, that can further limit chances of success on a lawsuit, right?
[18:44]  Benjamin Noble: Sure. Though I think that registration should be about the same for in-world brands, works of art, inventions, etc.
[18:44]  Rocky Maddaloni: How about RL contracts about SL - for instance - if I own an island and execute contracts in RL for land, buildings, etc - any issues ?
[18:44]  Benjamin Noble: That's true, Goldie, in a general sense. Depends somewhat on which branch of IP your talking about.
[18:45]  Benjamin Noble: Patent is all about having the patent.
[18:45]  Siyu Suen: patents and copy rights can only apply to single objects or designs that have been submitted though, right? otherwise we just have a sort of loosy goosy protection for all of our creations?
[18:45]  Benjamin Noble: Trademark is better to register, but it just speeds up the process of getting wide protection.
[18:45]  Benjamin Noble: Copyright is yours as soon as you create it.
[18:45]  Siyu Suen: oh!
[18:45]  Stephen Psaltery: Not to sound like I'm reiterating an issue, here, but as I understand it copywrite is inherent to a work of art, and does the same inherent legal protection extend to my work as a programmer? I apologize for my ignorance of IP law as a whole.
[18:45]  Benjamin Noble: Siyu - Patents are for specific inventions.
[18:45]  Benjamin Noble: Copyright is in artistic works, and applies, essentially, upon creation.
[18:45]  Siyu Suen: oh i thought you had to apply for a copyright (how nice!)
[18:46]  Goldie Goodman: But if you don't register the copyright, you can't get statutory damages and have to prove your loss.
[18:47]  Benjamin Noble: Stephen - that's right. Copyright is to the *expression* of an idea. You may have a copyright in code (e.g. HTML) that expresses something. But for the functionality of that code, what it does, you'd want a patent.
[18:47]  Benjamin Noble: That's why people say that even cars, for example, in SL are "copyright" protected rather than, as in real life, protected by a bunch of patents.
[18:48]  Benjamin Noble: It's the expression, visually, that matters for that protection. But if you figure out how to *make* a better car in SL, you're going to want to look beyond copyright.
[18:48]  Benjamin Noble: Goldie - that's right.
[18:48]  Stephen Psaltery: Ahh. That makes it clearer. So a copywrite protects people from exactly duplicating my code, but without a patent, they could reverse engineer it and write it themselves and it would be legal.
[18:48]  Benjamin Noble thinks he sees a potential copyright lawyer in the crowd.
[18:48]  Benjamin Noble: That's right.
[18:48]  Benjamin Noble: Here's one thing that matters - you an violate a patent without knowing it exists.
[18:49]  Benjamin Noble: That is, you can be held liable, have to pay money, for duplicating an invention even if you had no idea it was somebody else's invention.
[18:49]  Benjamin Noble: On the other hand, if I were to independently write exactly the same book as you, and could prove I'd never seen yours, I'm in the clear.
[18:49]  Goldie Goodman: If the other guy can afford to pay his lawyers to sue you, ha ha
[18:49]  Benjamin Noble: Because for copyright, you have to prove copying, or at least access and similarity ("constructive" copying).
[18:50]  Benjamin Noble: That's true. Patent litigation is really expensive.

SL M&A's, Contracts, Celebrities, and Audio Recordings

[18:50]  Cadence Juran: How about mergers & aquisitions? Specifically the intelectual property and assets of the company being aquired?
[18:50]  You: Rocky has a question on a little different topic:
[18:50]  Goldie Goodman: In filmmaking, it's pretty easy to prove you've made a copy. It's on the film!
[18:50]  Komuso Tokugawa: Could I ask about audio recording again, just to geta clarification
[18:51]  Benjamin Noble: Cadence - not sure what you're getting at, but I'd argue that SL assets are real assets that need to be transferred when a co. is bought or sold.
[18:51]  Benjamin Noble: Let's see... Znet, let's get the Rocky question, then I'll take Komuso's.
[18:51]  You: kay - How about RL contracts about SL - for instance - if I own an island and execute contracts in RL for land, buildings, etc - any issues ?
[18:52]  Goldie Goodman: Watch in the contract for the term "work for hire."
[18:52]  Komuso Tokugawa: ty
[18:52]  Lou Tones: Question Benjamin, Could you fore see a circumstance where an Avatar made to look like a living celebrity, could be used with attribution under "fair use" if the avatar were used in a news story or educaton piece as was not sold for profit?
[18:52]  Benjamin Noble: Some kinds of contracts require actual signatures, but generally, courts are going to view this as a commuications tool when it comes to contract. So again, pretend it's email or a fax or a phone call. The same law should apply, at least for th forseeable future.
[18:52]  Goldie Goodman: That means anything you create for your client, they own immediately -- not you.
[18:54]  Benjamin Noble: Lou - that's a tricky one due to something called the "right to publicity" that is strongest in California (it's a state-based right, there's no federal law on it). Search Virtually Blind -- I did a piece on it a few months back. There's a photo of a Cameron Diaz avatar there. But yeah, I feel okay running that photo, bc it's a news site. But not selling it.
[18:54]  Benjamin Noble: Okay, Komuso - what was your audio question?
[18:54]  Komuso Tokugawa: it was specific to music, but thought to I'd widen it to audio in genral now voice ios coming
[18:55]  Benjamin Noble nods.
[18:55]  Komuso Tokugawa: What are the limitations imposed on people for recording of live audio streams in sl
[18:56]  Benjamin Noble: Well, again, the TOS makes an attempt to limit all of that kind of thing, but I'll ignore that and focus on the IP question, since it's not at all clear that provision would be enforced right now.
[18:56]  Komuso Tokugawa: or virtual worlds in general actually
[18:56]  You: Saeya asks if you can touch a bit on employment issues in SL - what should companies be aware of, what about avatars with company last names operating in SL
[18:56]  Benjamin Noble: It's going to get more complex with voice, but let's look at it before.
[18:57]  Benjamin Noble: It's a case by case issue. If someone is giving a live concert, and doesn't give a general release, I think that the same law as would apply to a concert in central park would apply here.
[18:57]  Benjamin Noble: The artist *could* enforce a copyright (though most wouldn't).
[18:57]  Komuso Tokugawa: I have a published cc 3.0 nd-nc-attr on my website covering all live concerts I do btw
[18:58]  Komuso Tokugawa: do I need to highlight that more in sl when I play?
[18:58]  Benjamin Noble: As for chat, etc., you get into people's right to privacy, and my take is that the same law that prevents you from showing identifiable people without getting a release for a TV show is going to apply, IF they are identifiable in SL (hence, the "are avatars that are anonomized already okay to take pictures of?" question).
[18:59]  Benjamin Noble: I would, Komuso, at least say what rights you are and are not granting.
[18:59]  Komuso Tokugawa: kk..tyvm
[18:59]  Benjamin Noble: It will make enforcement easier later for you, if you have to.

Wrapping Up & Company Avatars

[18:59]  You: We are running up against an hour - do you have a few more minutes Ben?
[19:00]  Benjamin Noble smiles. Sure. Let's go another 10 or 15 or so. I don't want to keep people, and I'd be happy to "friend" anybody who wants to keep track of me.
[19:00]  You: Saeya has a question.
[19:00]  You: Saeye - now is your chance!!
[19:00]  Benjamin Noble nods.
[19:00]  Saeya Nyanda: Actually, it's fine... haha i answered my own question through thinking about it :P
[19:00]  Saeya Nyanda: someone else go ahead
[19:01]  Benjamin Noble: I'm sure I missed one or two back there...
[19:01]  Benjamin Noble: But I'd be happy to get caught up with anybody who I missed in private chat later too.
[19:01]  Goldie Goodman: With your meter running?
[19:01]  Benjamin Noble: Let's wrap up for now, and I can take any other questions personally.
[19:01]  You: I'm curious what companies need to be aware of with avatars operating under company last names.
[19:01]  Goldie Goodman: What's your hourly rate? ha ha
[19:01]  Benjamin Noble laughs.
[19:02]  Benjamin Noble: I don't practice in SL!
[19:02]  Sparkle Dale: [18:56] Znetlady Isbell: Saeya asks if you can touch a bit on employment issues in SL - what should companies be aware of, what about avatars with company last names operating in SL
[19:02]  Benjamin Noble: Sure.
[19:02]  JimmyJet Fossett: How many Linden's Ben??
[19:02]  Benjamin Noble: Ah, employment.
[19:02]  Benjamin Noble: Not my specialty, but I'll take a shot at it.
[19:03]  Benjamin Noble: Are you asking about avatars who inadvertently have company last names, or ones where the company has set up a presence?
[19:03]  Sparkle Dale: Saeya?
[19:03]  You: Ones; they have set up
[19:04]  Benjamin Noble: Okay. Well, it's going to be a matter of company policy what they can and can't do.
[19:04]  You: So companies should develop specific policies in SL?
[19:04]  Benjamin Noble: And there's no special rules for that. They're probably "representing" the company at least as much as if they had a blog on the company'
[19:04]  Benjamin Noble: company's site, and that's something that the company is certainly allowed to control the content of.
[19:05]  Benjamin Noble: I would, if I had a company here and gave my employees avatars with my corporate brand as their last name!
[19:05]  You: Does that means the company owns the avatar?
[19:05]  Maryrose Mariani: Yes, they should get a personal av for off time, I think.
[19:06]  Benjamin Noble: I'm not, as you might have guessed, really on the "avatars have rights" bandwagon, so yeah, from my perspective, the company owns it just as much as it owns your @company.com email address.
[19:06]  Komuso Tokugawa: I think that's avatards have rights...maybe;-)
[19:06]  You: Do we have one last question before we let poor Ben stop typing?
[19:07]  Benjamin Noble smiles. I think that you might have more than many, given your inextricable tie to your real life identity. But that's not to say the *avatar* itself does.
[19:07]  JimmyJet Fossett: Ben, what is a good way to stay atop all of this?
[19:07]  You: Well, let' us wrap then?
[19:07]  Amit Torok: Excellent topic. Thx
[19:07]  You: Thanks so much Ben.
[19:07]  Samson Francis: How do you see SL impacting the practice of law?
[19:07]  Benjamin Noble: JimmyJet - I'll plug my blog here. :)
[19:07]  Benjamin Noble: Thanks.
[19:07]  You: Please everyone go check out Ben'b blog Virtually Blind.
[19:07]  Benjamin Noble: http://www.virtuallyblind.com
[19:07]  You: hahaha
[19:07]  Goldie Goodman: Very interesting. Thank you.
[19:07]  Benjamin Noble: I actually think I'm the only person covering virtual law.
[19:07]  JimmyJet Fossett: Okay, great will check it out
[19:07]  Samson Francis: TY
[19:07]  You: This is great stuff, you will be hooked once you read it.
[19:08]  JimmyJet Fossett: Thanks
[19:08]  Komuso Tokugawa: tyvm ben
[19:08]  Jonas Ingrassia: TY Ben.
[19:08]  Benjamin Noble: I try to post a few times a week. Was on vacation recently, hence the light posting.
[19:08]  Komuso Tokugawa: very interesting and informative
[19:08]  You: Thank you. Please let us give Ben a big thanks and hand.
[19:08]  Siyu Suen: thank you so much Ben, this has been very very helpful
[19:08]  Mushroom Balut: great stuff, ty!
[19:08]  Siyu Suen applauds!
[19:08]  Benjamin Noble: Thanks so much, everybody. I really am happy to have gotten to talk to you. Those were *great* questions.
[19:08]  Benjamin Noble: Feel free to IM me if you want to talk further.
[19:08]  You: Please come back sometime??
[19:08]  Goldie Goodman: Great answers, too.
[19:08]  Benjamin Noble smiles.
[19:08]  Butch Dae: Thanks Benjamin
[19:08]  Benjamin Noble: Thanks again.
[19:09]  You: Thanks everyone for coming!!
[19:09]  You: I will post the transcript!
[19:09]  Benjamin Noble nods.
[19:09]  Benjamin Noble: O
[19:09]  Siyu Suen: thank you for holding this!
[19:09]  Goldie Goodman: Thank YOU, Znetlady, for setting this up.
[19:09]  Samson Francis: Great session znet
[19:09]  Benjamin Noble: I'd be happy to do this again in a few months, Znetlady.
[19:09]  JimmyJet Fossett: Thanks Znet, an excellent SLBC session (as usual)
[19:09]  Sparkle Dale: Thanks Ben and Znet, was very interesting.
[19:09]  You: It was great - thanks for the fascinataing discussion!
[19:09]  Samson Francis: Cudos for our host this evening
[19:09]  You: Thanks to Edleman for the space.

July 13, 2007

Virtual World 2007 Conference: Learnings

The theme of the recent Virtual Worlds 2007 Conference in NYC was “The Future of Media and Marketing.” 

I’ve been musing and then musing some more about the conference, wondering what jaw-dropping insights I could share.  I see that others did the same.

I purposely did not blog the conference, hoping to absorb it all and then distill it into some kind of virtual world Wisdom Soup.  Well, that and the fact the wireless connection there couldn’t sustain all the connected people a conference like this tends to draw.  I resorted to Twittering instead which proved to be a fun, humorous and an often more insightful back channel to the conference.

What became apparent though, ten minutes into the affair, was that there were two quite distinct groups there – 1) the virtual world platform owners / developers;  and 2) the content owners (marketers / educators).

Urizenus Sklar at the Second Life Herald calls them 1) "the philosophers;” and 2) "the marketing guys wringing their hands about ROI and looking for quick answers.”   Unfortunately in his estimation one group “gets it” and the other doesn’t. 

Actually, VW2007 was a classic paring of two populations who simply do not speak the same language.  At times, the frustration was quite palatable – and even visuals and sign language didn’t help any. 

That said, here are my personal take-aways and commentary about VW 2007:

VW developers and owners currently dominate the public conversation surrounding virtual worlds. 
I have huge respect and liking for these talented and visionary people.  However, more voices need to be brought into the conversation to broaden the perspective for every stakeholder, current and future.   Translators will emerge and both groups will learn what is needed from the other. VW developers have a vital view, but it isn’t the only vantage point on the landscape.   Audience members, in fact, provided some of the most insightful questions and challenging perspectives.

Marketers are hungry for metrics and demo/psychographics.
A concrete manifestation of that was the nearly 150 requests I received for a copy of the Real Life Brands in Second Life research study and the First Opinions Panel demographic survey I presented in my five-minute (well, maybe 8 minute) panel talk.  Contrary to popular wisdom, it is possible to apply success measurements to a vw initiative.  It doesn’t have to be just about “marketing R&D.”  While it is true that we do not yet have sophisticated metric tools specific to virtual worlds, we do have very sophisticated metrics for our other marketing initiatives.  By integrating VW initiatives with some more mature metric systems marketers can at least partially satisfy this real business need until vw metrics mature.

There is some real marketing, sociological and psychographic research being done in virtual worlds – and it is not well known or publicized.  Market Truths and Reperes are just two companies that can provide marketers with the intelligence and credible research marketers need pre- or post-vw initiative. 

Marketers expectations of their VW developers are too high.
Marketers expect their VW developers to have all the marketing answers.  They don’t.  They can’t.  Marketers need a team approach and a real commitment (not necessarily monetary) for a truly successful vw initiative.  Integration is key. Social media marketing concepts are key.  My suggestion for a success team:

• Marketing and PR staff / agency
• Social Media specialist / consultant
• Virtual World Developer
• Virtual World and Real World market researchers (maybe)
• Platform Owner (perhaps)
• IT Group (if appropriate)
• RW & VW Customer

Intellectual Property Rights Conflict Lost in Translation
This was an area in which the two populations at VW 2007 were particularly linguistically mismatched. I’m the first one to agree that marketers have spent millions and millions so that consumers will make a brand part of their identity, and therefore it is not surprising that when avatars are re-creating themselves in virtual spaces they naturally want to integrate the brands they identify with.  It is an absolute fantasy for any marketer.

The prevailing advice from several panel members was to allow or even encourage customers to “play with” the brand, be the brand, mashup the brand or take some kind of personal virtual ownership of the brand. 

The problem for the marketer is current trademark and copyright laws aren’t in line with this.  If a brand allows unlicensed, unstructured and free use, it will in practice be putting the brand/marks into the public domain and the brand owner may lose its right to claim it as a valuable IP.  A real big, real world issue for business.  Not a simple conundrum.

Trademark and copyright laws will need to be revised to address the collaborative digital mind.  In the meantime, marketers need to employ smart strategies that protect both the identity with the brand - and the brand identity.

Virtual worlds have a future.
Even as they are evolving, the enthusiasm for and potential of virtual worlds are driving factors.  A path has been set for their growth and eventual entry into mainstream use. Some panelists predicted five years; some said ten. How far that is away and how we define “mainstream” is to be seen.  We still have millions unconnected to The Network, much less the Metaverse.

But if they follow the evolution of everything else - and there is no indication they are any different - virtual worlds will not progress linearly.  The momentum behind them is undeniable, however, for the Future of Media and Marketing - and a whole lot of other things.

April 8, 2007

Photo credit:  Dedric Mauriac, Snapzilla

Intellectual Property Rights in Virtual Places

Social media brings lots of intellectual property rights into question - or maybe better stated - contention.  Marketers work long hours, have sleepless nights, and spend the combined GDP of several mid-size countries on getting customers to embrace their brands - indeed to meld the brand into our identities. 

Marketers perhaps hope the outcome will be quiet recommendations at civilized cocktail parties or over hot dogs at the local football game; or the car / perfume / clothing we buy would be a stand-in to express to the world who we are.

Ooops - society (and technology) has changed just a tad, and "recommendations" are now public all over the social media landscape.  And those brands marketers hoped would define our identity?  Well now here we find ourselves standing in virtual spaces where we can express, create and define our identities and preferences in ways not possible in the real world, so how surprising is it that we want to define ourselves in some measure in terms of brand there - say, maybe even by becoming the brand?

Case in point.  Virtually Blind, a new and quickly addicting blog by intellectual property attorney, Benjamin Duranske, has a commentary post on a Second Life store, Body Doubles.  Body Doubles sells avatars and shapes that will make you do an in-world double-take: "was that Halle Barry that just flew by?"  Body Doubles sells celebrity look-alike avatars.

Duranske says celebrities may have grounds to cry foul under the "right to publicity" body of law which has well-developed precedence for protecting a celebrity's right to their own image.  But Body Doubles may claim that the likenesses have sufficient artistic interpretation to give them first amendment rights (under U.S. law).  He notes a recent court case in which a painting of Tiger Woods was held to be protected under the first amendment as an artistic work.  Are avatars any different?

This area of IP is far from settled, but it also points to brands needing to expand their thinking and maybe even legal definitions surrounding the use of brands based on some very new value propositions.  If we engage in social media for brand influence and are asking customers to use their influence on our behalf – and at the same time are telling customers to incorporate our brand into their expression of identity, then perhaps we need to step back and find ways to measure the value of the influence - or even allow the use of a brand - in terms of return on influence and the new possiblities surrounding virtual identities and virtual expression.

Ask yourself when customers can embrace your brand to the point of becoming the brand in a virtual way, is that your marketing at work?

March 4, 2007

Virtual World Photo Releases

You may have heard that Anshe Chung Studios is citing copyright violations and the DMCA in the use of her Second Life avatar image and textures during her interview at CNET's Second Life bureau last month.

YouTube has removed machinima of the event and Boing Boing and the Sydney Morning Herald are looking into their legal rights to use captured images of the event.  According to Jason Shultz  attorney with the Electronic Frontier Foundation, avatars are copyrightable property, but that the fair use doctrine allows anyone to take screen shots or screen captures of avatars and the environment.

Last month when Wagner James Au at New World Notes was shooting some footage in world for an upcoming cable TV documentary, the producers of the event presented him with a virual world release form designed to apply to both the avatar and the real world person who owns it.

News coverage is a different animal of course, but considering virtual intellectual property rights are far from concrete, this seems like a simple enough thing to do when in doubt.

Read more about Chung at Reuters and CNET.

January 7. 2007

Second Life: Tips for Business

An article I wrote a month ago or so for Optimize Magazine will be hitting the newstands on January 1.  Some of the verbiage that went under the editor's knife was a side piece with a few tips for businesses who are moving into Second Life, or are considering some of the other "outside world" opportunities the interest in virtual worlds is fueling.

So, here are those tips:

Invest time before money.  Appoint a 3D liaison to inhabit and learn about virtual worlds for your potential applications. 

Purchase your name.  Not all worlds offer them, but Second Life is offering custom last names which can serve to identify your team or employee avatars.

Create avatar guidelines.  You have a blogging policy, right?   Okay, well get one of those too.  Create guidelines for your group or employees while operating in world under your organization’s name.  The breadth of activities available within Second Life is rather robust.  Some may not be consistent with your brand image.

Find and leverage the social and information structures.  Social virtual worlds are social – incorporate social activities and the existing social structures into your strategies – and  go ahead and create new ones.

Don’t replicate 2D experiences in a 3D world.  Three-dimensional spaces offer expanded opportunities for engagement with all types of content, but not everything is better in 3D.  PowerPoint bullets are just as boring to an avatar – how about walking your audience through the issue as a 3D model?

Embrace the “Game Babies.”  Develop for them and win. Hire them – and listen.  There are real generational differences that can both challenge and enlighten your teams.  Remember that the true “gaming generation” is just beginning to enter the work force and their interactive and social expectations are high, and are a rich source of innovation for your organization.

December 22, 2006

Sony BMG Jumping into Second Life

As part of its search for new revenue streams in an industry that has frequently failed to keep pace with its customers, Sony BMG has purchased an island in Second Life.  Sony plans to hold concerts in Second Life, and presumably to facilitate shared music experiences.

Financial Times Deutschland reports that Sony BMG Europe is getting serious in its search for new market strategies and Second Life is just one in a series of moves into new venues and perhaps toward new models.

The addition of the capability to stream music in Second Life was largely responsible for the explosion in its now-robust social scene, but the number of avatars able to occupy a simulation is a technical hurdle that currently limits SL as a mass experience medium.

However, the possibilities of new licensing/purchasing models is intriguing. Music attached to our in-world objects and islands and animations and events.  Indeed, your very presence (avatar) in Second Life may be music. We use it as a device already in movies and radio to communicate “presence” – why not in SL?  The ringtones we attach to our RL cell phones act as a form of self-expression.

Our music – whether we create it or experience it - is an expression of ourselves   It is logical that we take it into our virtual spaces, as well, and shape it to ourselves.  It will be interesting to see if Sony, EMI and the others that will follow them into Second Life will let us play with the music there.

Photo credit: Argus Collingwood 

October 2, 2006

Popular Science and Creative Commons in Concert with Second Life

Popular Science is sponsoring the Creative Commons Concert in Second Life on September 14 at 5:00 p.m. (SLT/PDT).  Actually Popular Science Magazine is teaming up with Creative Commons on a series of tech-oriented cultural events designed to promote the Creative Commons mission.  There are several interesting things about this – not the least of which is that they are “walking the CC walk” with this event.

According to the event announcement on the Creative Commons wiki,

“PopSci.com editor Megan Miller says, 'We're in the midst of an information revolution, and the editors of PopSci are excited about the possibilities for digitally sharing ideas through open-source software, wikis, and alternatively licensed creative works—that's why we're proud to support Creative Commons.' "

If you are not familiar with the Creative Commons license, it allows for a “some rights reserved” copyright.  In other words, it allows you to keep your copyright, while still allowing others to share your work.  It’s the modern approach to the copyrighting of intellectual property.

True to the CC form, anyone has the right to record, copy, distribute, and play audio and video of the concert.  The concert will feature popular in-world musicians and will be simulcast in 4 in-world sims; available via Internet radio; will be streamed on the web, and is available for anyone to stream into their own SL land.  Sometime after the event, there will be a Second Life show of the best Creative Commons licensed photos, recordings and machinima of the event (prizes will be awarded).  To participate in the contest you just upload to Flickr and tag them appropriately, or add them to the Second Life group – and of course add your CC license. 

By the way, Jonathan Coulter, who is a featured performer at this event, is also the host of the Now Hear This Popular Science podcast, so I’m guessing a podcast of the Second Life event may be available as well.

Another  “interesting” aspect of this is that Popular Science has roots in the print tradition – which holds tightly onto the “all rights reserved” mentality – indeed it is printed right there on their web site for all to see.

But, the PopSci online tag line is “delivering the future every day” so could that mean a print publication publishing under a Creative Commons license is in our future??

Wired has sponsored this event in the past but their web site and blogs still bear the standard “all rights reserved” copyright.

The concert will be held in-world on Menorca.

Photo credit:  Zenigma Suntzu's Flickr photos

Second Life Breaks the 1% Rule

It seems that 60% of the residents of Second Life create content, according to Cory Ondrejka, vice president of product development for Linden Lab (owners of SL). 

Compare that to the roughly 1% of people that create Yahoo groups or contribute to Wikipedia (see article about the 1% rule here).

A few other interesting statistics:  Half the residents are women (just like RL!), and the average age of residents is 33 (those under 14 belong to their own “Teen Grid”).  SL is growing at about 12%, per month and, according to the website today, it has 392,091 residents, who spent in excess of $185,000 in U.S. dollars today (as of 6:00 p.m. SL Time).  The best rate of exchange on the Linden Exchange today (to buy in-world dollars) stands at $312 (Linden)/$1 (U.S.), with an average of L$303/US$1.00.  Today’s total trade volume stands at L$9,938,742. 

Last month (July) the number of transactions (of all kinds) between residents was 5,728,914.

From the Second Life Police Blotter - Crime of the Virtual Kind

Last week a Second Life resident was issued a warning (disiplinary action) for copyright violation.  The resident was using the Audi logo on their in-world car. 

You may recognize many virtual vehicles while traveling around Second Life.

Threat or opportunity?