DMCA notices in Second Life: A practical example
by Tateru Nino 
Sep 11th 2008 at 10:00AM
Filed under: News items, Second Life, Legal, Virtual worlds
Earlier this year, we made a number of attempts to determine how Linden Lab handled DMCA notices on content in their virtual environment, Second Life. Linden Lab declined to answer at the time, however, the owners of a clothing and accessories store ~*Fresh Baked Goods*~ (whom we will call FBG for brevity) were recently the recipient of one such DMCA action, and have documented the whole process from their end of things.
It all started on Tuesday, 19 August 2008, when an email arrived from the Removals Department at Linden Research Inc (the proper name for Linden Lab). Citing three sets of necklaces as the offending articles, the owners of FBG were asked to disable or remove access to the content and were given two days to fax a formal DMCA counter-notice to Linden Lab, including their physical identities and contact information, which Linden Lab would then pass on to the person or organization who filed the original DMCA notice.
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The owners of FBG disabled the vending and availability of the content as Linden Lab requested, and began the process of filing the counter-notification.
While the counter-notification was being arranged, the two owners both had their accounts temporarily disabled for 'testing' -- a process where a Linden Lab staff member or agent, temporarily logs in as the user. This is often used as a tool for bug-testing and fault-reproduction. It is unknown why this action was taken in this case.
On Friday 22 August, Linden Lab acknowledged receipt of the counter-notification, and while the FBG owners had disabled the vending and availability of the indicated content, Linden Lab then removed all the items from inventory, as well as vendors and other in-world containers containing copies of the items. This included the OnRez and SLexchange boxes that were configured to deliver other products.
At this point, the unknown filer of the original DMCA notice was given ten days to commence further legal action against FBG, in accordance with DMCA guidelines. FBG wanted to know who had filed the original DMCA notice, and what the specifics of the infringement listed in it were. Linden Lab declined to divulge the information, citing the privacy clauses of the Second Life Terms of Service.
Eleven days passed without notification from Linden Lab, so the FBG owners sent another email to the removal team requesting that their content be returned. On Wednesday, 10 September, absent any legal action filed against FBG, that finally happened.
Unfortunately, whoever was driving CopyrightAgent Linden (the in-world account used by the Removals Department at Linden Lab) was apparently either ignorant of, or heedless of the Second Life permissions system. The transfer of ownership messed up the permissions of the objects, such that the owners/creators of those objects no longer had sufficient working permissions for all of the content that was returned (which was, as you may recall from above, rather more content than was actually targeted by the notice). Not all of the content that was removed from FBG was returned to them.
Additionally, with the change of object UUIDs, a variety of scripts and notecards required updating at considerable time and expense to FBG -- who, as far as we know (since no further action took place) are apparently blameless.
By the terms of the DMCA, Linden Lab is held blameless and free of any liability for any actions, damages or costs resulting from their compliance with the DMCA process.
The basic lessons here seem to be:
- The regulations governing DMCA notices are heavily in favor of the issuer. That's a matter of US law, and if that bothers you, you should speak with your United States federal representative.
- Act quickly, if a DMCA notice is filed against you and you wish to contest it. You have no time to dither. If someone files a notice against you, you have only two days to have a complete, correct and satisfactory counter-notification faxed to Linden Lab.
- Someone may file a DMCA notice against you with complete anonymity as far as you're concerned. While they have to give an identity to Linden Lab, that information is never available to you, unless they chose to pursue additional legal actions above and beyond DMCA notices.
- Once a DMCA notice has been filed, your identity is held hostage to whatever content has been nominated in the notice. You must divulge your identity to the person who filed the notice, via Linden Lab, in order to have your content returned to you.
- If your content should be returned to you by Linden Lab, the odds are that not all of it will be returned, and that some of it will be returned in an unusable form, or in a state that requires additional time and cost from you to restore it to original condition.
- The people utilizing the CopyrightAgent Linden account apparently need some training (or retraining) in the mechanics of the Second Life permissions system. While the Lab may be exempt from liability, it seems improper to carelessly damage or destroy a user's content in the act of restoring it.
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Reader Comments (Page 1 of 1)
ScytheNoire said on 11:19AM 9-11-2008
It's amazing that the DMCA ever even became law. Shows just how stupid the government is and how little rights people now have. DMCA abuse is rampant, and until those who file such requests are held accountable for false claims, or the DMCA is done away with, such abuse will continue.
Linden Labs can be held accountable, as ToS's do not hold up very well in court, and it is the responsibility of Linden Labs to verify that the content claimed in the DMCA takedown is actually owned the other other person. This is why companies like Google are fighting against the DMCA, because of so many false claims.
Linden Labs just shows what pieces of trash they really are and why no one should do business with them.
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Michael said on 1:08PM 9-11-2008
You are wrong. The DMCA does NOT require the service provider to do ANY verification of the validity of the notice. Further, they are protected by the DMCA from suit against the takedown as long as they restore the items after receipt of counter notice and subsequently not receiving further notice of legal action.
I agree that LL not turning over the original notice is WRONG, and there is NOTHING in the law that says they cannot do so. If anything, that's where their liability falls, and in not returning the goods in their original state.
Pavig Lok said on 11:28AM 9-11-2008
This is fairly standard (if somewhat insane) practice for dealing with DCMA notifications. Because LL _can_ take material down, they are under legal obligation to do so.
It's an expensive and annoying process for LL, in fact any internet firm which gets hit by it.
There is merit in the DCMA system making it easier for folk to file takedown notifications, as this decreases the burden for small players who have been ripped off. Unfortunately the system of penalties for filing false notifications is not mature enough to dissuade folk from doing it aggressively.
Hopefuly the RIAA will continue bashing it's head on the courts and paying the penalties of wasting the courts time with lame copyright violation cases long enough to establish precedents to protect smaller players from the damages sustained in this kind of take-down action.
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Ordinal Malaprop said on 11:57AM 9-11-2008
That "two days" part sounds like something that LL have made up for themselves - I can't find reference to it in the counter-notice procedure.
I am not convinced, though, that returning the content in a mangled form actually counts as "restoring the material" [512(g)(2)(C)] - and LL _would_ be liable there, since 512(g)(2) is an _exemption_ to the lack of liability.
Of course, all that would mean is that one could sue LL for inventory loss; good luck there.
The full text of the DMCA can be found here, incidentally: http://static.chillingeffects.org/512.shtml
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Michael said on 1:09PM 9-11-2008
I agree -- the two day thing is NOT law, and Linden Labs would be in violation of the DMCA if they refused to honor your counter notice received after their artificial two day limit.
Tateru Nino said on 2:11PM 9-11-2008
Hmm. So liability-exemption isn't end-to-end? That's *very* interesting.
Ordinal Malaprop said on 3:55PM 9-11-2008
Well, you're only exempt if you follow the procedure properly, including the "putting the stuff back up" part.
But one of the problems with the DMCA in this context is that LL's liability really isn't equal on both sides - or rather, they're equally liable if they fail to take content down as if they fail to put it back up, but the former is far more likely to result in damages against the company than the latter. Somebody could quite easily say "LL were facilitating the illegal distribution of my content by refusing to take it down even after requests" and they would have a hard time arguing against that, with a presupposition being that as they didn't follow the DMCA they didn't make an effort. It would also be a straightforward IP case where there is a lot of precedent.
But somebody whose content was crippled when LL messed up the permissions has to sue LL for inventory loss, where everything is a lot murkier and there are lots of ToS items involved which would complicate matters; as far as I'm aware nobody has actually done that successfully, though lots of people shout about it in forum threads.
Not that the average person or even small business is going to be able to do either anyway.
Jacek Antonelli said on 3:23PM 9-11-2008
I have to admit, it's rather disturbing that someone could disrupt one's entire business and force you to reveal your private details, anonymously and without any base in fact, by submitting a simple online form. But this is nothing new; the DMCA has been doing that in SL for years.
More disturbing is that Linden Lab removed so much content, and disrupted business beyond what was necessary, despite FBG disabling access to the purportedly-offending content and filing a counter-notice, as was the proper response. And the permissions and UUID mishap is just groan-inducingly stupid of LL.
Seems the lesson is: comply or not comply, either way your livelihood is at the mercy of complete strangers. That's the sort of thought that helps you sleep at night, ain't it?
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Ordinal Malaprop said on 4:02PM 9-11-2008
What irritates me is that a lot of the restrictions are not necessary under the act anyway. For instance it is not necessary to pass on the counter-filer's details to the filer - and _absolutely_ the wrong thing to do I would say - without a subpoena, and it certainly isn't necessary for the counter-filer to respond within two days. In fact unless I am misreading the Act, if LL refused to take into account a counter-filing after two days they would be in breach, as it doesn't specify a time period.
And as I said, it could certainly be argued that replacing the deleted content with broken content is not really restoring it at all, which also puts them in breach.
The thing is that as I said above they are no doubt aware that the chances of them being stung on a charge of removing inventory are pretty small.
PK said on 4:35PM 9-11-2008
I'm waiting for the EFF or the ACLU (or both) to file suits on behalf of (insert poor innocent victim here). The provisions of the DMCA allow an accusation to be made, and action (punitive/corrective) to be taken. There are 2 fundamental problems with this:
1) the punitive action is executed without judicial supervision
2) The accuser enjoys complete anonymity. Even in criminal cases of the most vile type (sexual assault) the accused knows the identity of the accuser.
Both of these problems are Constitutional violations. A good case taken all the way will have the DMCA diced, at least in the enforcement clauses.
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Tateru Nino said on 11:34PM 9-11-2008
That's the same EFF founded by Mitch Kapor, former chairman and current board-member of Linden Lab, right?
PK said on 10:00AM 9-16-2008
Sadly, yes Tateru, the same. I shall have to place all my faith and hopes into the ACLU.
Dedric Mauriac said on 8:01PM 9-11-2008
Ok, Hypothetical situation... If I am wanting to stalk a woman, and I want to know who this female really is in real life, I simply file a DMCA "claim" on her products or an item she has in inventory (easy to get since we can inspect avatars for a list of attachments worn they made and own) and the lindens respond to me with her identity and she'll never know who I am (Avatar or Real Life)?
Does the person have to be the owner/creator of the copyrighted content, or simply be in possession of it?
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TigroSpottystripes Katsu said on 8:30PM 9-13-2008
we really need to have non-LL managed SL compatible grids ASAP :(
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