In the wake of the story about Prometheus’ DMCA claim against a Second Life blogger, several commenters have since questioned the use of a DMCA in this case, characterising it as extreme and inappropriate. One of the comments that didn’t get published, but should have, is one that Second Life resident and lawyer Vaki Zenovka wrote.
Ms Zenovka, who is a frequent presenter at Second Life Bar Association meetings inworld, attempted to leave a comment on this blog which (inexplicably) did not appear. I wish that it had, because it is so clear on the appropriateness of using a DMCA in this particular case, which might have cleared up many misconceptions before they arose. Since chasing down her comment (which she published on Plurk), I have reproduced it in full here:
“Let’s talk about some woeful misconceptions about the DMCA that have been posted in these comments. First, it’s true that there is no up front cost in initiating the DMCA procedure. However, there is potential back end cost, because any time you file a DMCA, you open yourself up to statutory damages (including costs and attorney’s fees) if you misrepresent that the material or activity is infringing. So that should always be a concern.
Referring to a comment left by Abbot on June 1, 11:37pm:
Second, a poster asserted that “a DMCA application requires that you prove ownership of the Intellectual Property.” This is not accurate. A DMCA application requires that you give a statement, under penalty of perjury, that you are the owner of the of the content or are authorized to act on the owner’s behalf. There is no proof required. A DMCA takedown notice goes to an online service provider. An online service provider is not a court of law, and doesn’t care about proof.
Third, a poster asserted that someone wanting to file a DMCA counter-notice would have to “prove that the product is not my own creation and that my original claim is false and invalid.” This is not accurate. Again, a DMCA counter-notice goes to an online service provider, not to a court of law. There is no proof required. A DMCA counter-notice simply requires that the person filing the counter-notice give a statement, under penalty of perjury, that he or she has a good faith belief that the material was wrongly taken down.
Fourth, and perhaps most importantly here, the DMCA is /exclusively/ a copyright remedy. It has absolutely no relevance to trademark infringement. A brand owner who is unhappy with the display of his or her brand or concerned about the potential for consumer confusion /cannot/ use a copyright claim to take down an image in which the brand owner has absolutely no copyright interest (side note: a trademark owner does not have a copyright interest in his or her brand name). That is blatant misuse of the DMCA. (My emphasis)
I’ll end this by saying this is not intended to be legal advice. I don’t give legal advice in blog comments, and I’m not your lawyer. But I hope that if anyone has received a DMCA based on a trademark claim, they do a little searching online for information about it and consider a counter-notice. I also hope that people are taking the information about the DMCA’s requirements put forward by a clearly biased commenter with a grain of salt.”
There’s still time to complete a survey that I am hoping will show how Second Life residents perceive laws, and how they might affect their actions inworld and in Second Life social media.