Last month I conducted a survey on NWN asking what users knew about intellectual property. I published an excerpt of results last week on the same site. This is the full version of that post.
Generally, I found that most Second Life residents responding to this survey have an accurate view of intellectual property laws. The question that yielded one of the most surprising results revealed that nearly 1/3rd of respondents do not fully agree with the Linden Lab Terms of Service.
First things first: I am not a lawyer. Second, nothing in this post is a substitute for, nor does it serve as legal advice. Only a lawyer that is licensed to practice in your jurisdiction, and that is familiar with the details of your specific case can advise you on legal matters. Do not act on this information alone.
Further, the information I share here applies to people living in the US. The laws of our respective countries govern us when interacting with each other online, and as such the sources I cite may or may not apply to you. Different factual situations and different legal jurisdictions may lead to different results.
The information I share, however, may be relevant to the majority of survey respondents (US residents) and to Second Life residents in general that use internet service providers to create and share content (e.g. Linden Lab, WordPress, Flickr, Facebook, Google, etc.), which operate under US law.
252 respondents (96%) completed the online survey of which 99% reported being Second Life Residents. 4% did not complete the survey. 53% of respondents resided in the United States, 12% were in the UK, 5% were from Canada, and 5% were from The Netherlands. In total, survey respondents completed the survey while in 25 countries.
Copyright is a legal right created by the law of a country that grants creators of original works exclusive rights to its use and distribution, over a limited time. Copyright is also territorial, which means that these rights do not extend beyond the specific state in which you live, unless that state is part of an international copyright agreement (e.g. The Berne Convention).
Most respondents (31%) indicated they published screenshots / photos taken in Second Life, followed by creators selling their digital goods (23%). Second life bloggers (19%) and creators that give away their digital goods (21%) had lower representation. The options were not exclusive, with many choosing more than one. Only 6% of respondents indicated they did none of the above.
Second Life residents’ perspective on the DMCA
Surprisingly, 8.7% of respondents reported filing a Digital Millennium Copyright Act (DMCA) notice on Second Life content. Even more surprisingly, 2.8% reported they didn’t know if they had filed one. Only 2.4% of respondents indicated they had received a DMCA notice on Second Life content.
55.6% were correct in reporting that a DMCA notice costs nothing to file. This lack of up front cost is one reason critics cite for some of the unintended consequences arising from its use. Claimants must fulfill several requirements when filing. According to the Electronic Frontier Foundation (EFF), the copyright owner (or his or her agent – like a user that hires an attorney to file DMCA notices to avoid revealing name and contact details) must supply the service provider (e.g. Linden Lab, WordPress, Flickr, etc) with their name and contact details (yes, their real life details – unless you use a lawyer to do this for you), the location of the infringing materials, enough information to identify the copyrighted works, a statement of good faith, and a statement of the accuracy of the notice under penalty of perjury, that the complaining party is authorised to act on the behalf of the copyright holder.
Importantly, filing a DMCA notice opens you up to statutory damages (including costs and attorney’s fees) if you misrepresent that the material or activity is infringing, and 52.8% reported being aware of this.
Only 41.7% knew that A DMCA notice does not require that you prove ownership of the Intellectual Property. Ms Vaki Zenovka, a Second Life resident and lawyer that speaks regularly on topics related to the law and Second Life, said on my blog: “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.”
Only 40.9% of respondents knew that when filing a DMCA counter-notice, you do not have to prove that the content is not the claimant’s own creation and that the original claim is false and invalid. On this, Ms Zenovka said: “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.”
22.6% were incorrect in saying that a DMCA notice should be used to counter trademark infringement. On this matter, Ms Zenovka said: “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).”
60.2% were correct in saying that a DMCA notice should be used to counter copyright infringement. This is not to suggest one should immediately reach for a DMCA notice when addressing with a copyright infringement issue (which maybe be why some of the 31.8% indicated they didn’t know). The first resort should be to ask the other party to stop using the item in question. If this doesn’t work, the claimant can use a DMCA notice to require the ISP get involved. Despite the DMCA’s drawbacks, Ms Zenovka says:
“The DMCA gives individual users a clear, simple process and a remedy that isn’t spending $100,000 on a copyright infringement lawsuit every time a work is potentially infringed. It allows individual creators to file a simple notice and request that service providers intercede and remove potentially infringing works, and if a work is removed that isn’t infringing, it allows the work to be restored with relatively little delay (14 days as compared to months or years). In addition, it allows service providers to exist without constantly defending copyright infringement lawsuits — and believe me, without the safe harbor provision of the DMCA, every online provider that offers user generated content would be enmeshed in crushing vicarious and contributory infringement lawsuits, because it’s much more profitable to sue WordPress than it is to sue Random Blogger #12.”
Most Second Life residents are aware that laws apply to them in-world
73.4% agreed that Second Life residents are expected to obey the laws of their own local countries with regard to their actions in the virtual world. While true, the colliding of laws between jurisdictions might raise some complicated issues:
“a problem can arise in countries which have tough laws regarding material downloaded from the Internet, such as pornography. It is possible, for example, for a US user – even in a non-adult area – to approach German users and create an object displaying an obscene uploaded image which is illegal under German law but legal under US law. Although the US user has broken the Second Life terms of services as a result, and faces suspension or banning from Second Life, the German user has broken a real-life sex offense law by downloading the image and faces a far worse penalty. Even if the user is eventually deemed to not be responsible for this download because it was unsolicited, they will still have been investigated for a sex offense. However, no actual prosecutions have resulted from actions of this type so far.” (Source)
84.9% felt that Second Life residents are expected to pay income taxes on income they make from Second Life activities, which is correct.
Some items in Question 4 were more open to interpretation in that certain situations depend on circumstances that are not always black and white. For example, 75.4% of respondents agreed with the statement that printing, copying, and distributing material that someone else made in Second Life is a violation of the copyright law. Exceptions apply, like when material is specifically licensed more generously than “All Rights Reserved”. For example, Creative Commons licenses bridge the gap between All Rights Reserved and licensed copyrights that respect how the creator wants their content to be copied, distributed, edited, remixed or built upon, and under what circumstances. Further, Zenovka says “printing, copying, and distributing material may not be a violation of copyright law, because the copying or distribution may be a fair use, or may be licensed by Linden Lab’s terms of service.
On a less ambiguous point, 83.3% agreed that if an item they purchase inworld or on the Second Life Marketplace doesn’t have the copyright symbol, it is still considered copyrighted material.
Respondents found the next two items somewhat more ambiguous – and might have preferred to answer with “it depends” or “I’d need more details to make a determination”:
1. While 45.6% agreed that the copyright law protects the content in blogs related to Second Life on the Internet, 37.3% said they did not know. One can interpret answering “I don’t know” in a number of ways, including ignorance of the law, or requiring more information before making a true or false judgement. For example, a blogger can license their work to be copied and shared legally (although this is usually explicitly stated either publicly or privately, as opposed to assumed by the copier). Further, one is free to use anything from short quotations to entire articles, images, songs, under Fair Use – depending on the circumstances. The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
There are no black and white rules for what constitutes fair use, but the Copyright Act does set up four factors for courts to look at which include the purpose and character of the use (whether it’s been transformed sufficiently), the nature of the copyrighted work (fiction vs nonfiction, published vs unpublished), the portion of the work that is used, and the effect on the market or potential market such copying might have.
2. 35.3% said that Instant messages that are posted online aren’t considered copyrighted material. 30.2% explicitly said they were not. The Second Life Community Standards (to which we agree to in Article 6 of the LL ToS), however, explicitly states: “posting conversation logs, or sharing conversation logs without the participants’ consent are all prohibited.” This issue is more complex than at first may appear. Firstly, instant messages are copyrightable. Regardless, copying and pasting someone’s private conversations with you in Second Life – regardless of where you paste the content – isn’t a copyright issue per se, but more a matter relating to privacy laws, and it might be enough to get you disciplined by Linden Lab.
On a less ambiguous issue, the majority (38.9%) agreed that blank forms, short phrases, names, titles, facts, and ideas found online aren’t considered original work. 34.5% said they didn’t know.
Four remaining issues in this question were subject to more interpretation:
- 57.1% agreed that it is legal to use a small portion of copyrighted material for education purposes. Further, it is legal to use more than a small portion of copyrighted material for educational purposes.
- The majority (45.2%) agreed that individuals, who are affiliated with an education institution aren’t allowed to use copyrighted text material or motion media from the Internet without obtaining permission from the owner, but they are wrong. In both cases, there are nuances to consider, and interested users should consult Library Copyright (US) and Copyright User.org (UK) for more information on exemptions on educational use.
- 55.2% agreed that it is illegal to download someone else’s images and upload them to one’s web site. Images are subject to the same copyright and fair use laws as written material, so Creative Commons licenses, individual permissions, and Fair Use might also apply.
- 67% did not agree with the statement: “When obtaining permission to use copyrighted material, it is not necessary to contact the owner of the copyrighted works.” Again, unless the creator publicly states their material is copyable (e.g. under Creative Commons License), or falls under Fair Use, then it’s safest to get permission from the creator, before copying and distributing the work.
Nearly ⅓ of Second Life users do not agree with the Linden Lab ToS, yet use it anyway
The last question of the survey yielded the most surprising results.
First, 37.7% said they had read the Linden Lab Terms of Service in full. The Linden Lab Terms of Service is a document that contains over 16,000 words written at a college graduate level (and that’s just the main body). At the average reading speed of 300 words per minute, that would take more than 53 minutes assuming it wasn’t written in legalese. I am surprised that such a large proportion of users took the time to read it in its entirely. Research shows that just 7% of Britons read the online terms of service and conditions when signing up for products and services.
While 99% of survey respondents reported they were users of Second Life, only 26.6% said they fully agreed with the Linden Lab ToS, despite it being mandatory to agree with these terms when registering to use Second Life. I found this surprising, since by clicking the “I Agree” button, the user is effectively agreeing to be bound by these terms (whether they read them or not).
The second paragraph of the Linden Lab ToS clearly states:
“By using the Service, you agree to and accept these Terms of Service, including all policies and terms linked to or otherwise referenced herein. If you do not so agree, you should decline this Agreement, in which case you are prohibited from accessing or using the Service.”
This is something I’ll be looking into further in the future, to better understand the contradiction: Why do so many residents that do not agree with the Terms of Service, indicate that they agree with it and use the service anyway? The reasons may appear obvious on first glance; still, I’d like to look into this further.
51.6% of respondents indicated that they read the Second Life Community Standards in full. What struck me as the most surprising result of this survey, was that 22.62% of respondents did not agree with the contents of the Community Standards. Assuming that these respondents had read the document (in order to disagree), that would suggest that 57/130 (44%) did not agree with what they read. The Community Standards include policies protecting residents against intolerance, harassment, assault, disclosure, adult content outside of adult regions, and disturbing the peace. It also explains how Linden Lab goes about policing against the violations of these standards, and how to report abuse.
Most respondents (53.2%) reported they were familiar with the Digital Rights Millennium Copyright Act (DMCA). A surprising proportion (12.7%) stated that they were not sure if they were familiar with it or not. One of the most commonest answers was that 88.1% said they supported copyright as a legal right. Somewhat perplexingly, more respondents (90%) felt it applied on the internet, and even more (91.7%) felt it applied to Second Life.
Only 5.2% had registered a copyright for content related to Second Life. Less (2.8%) had registered a trademark for content related to their brand in Second Life.