Wednesday, February 06, 2008

Second Life Copyright Conundrum

The internet is a copy machine. At its most foundational level, it copies every action, every character, every thought we make while we ride upon it.
- Kevin Kelly
If you read just one blog post today, skip this one and go read Kevin Kelly's pseudo blog post at The Technium entitled "Better Than Free"; then please come back for some context. [Kudos and hat tip to Malburns for the link]

A friend recently sent me a tweet inquiring as to my opinion about this post by Tateru Nino regarding the on-going allegations, outrage and uproar about content "theft" in Second Life. I was loathe to get into the debate, but was subsequently motivated by Ziggy Quirk who makes a lengthy YouTube plea:
"Why would anyone walk into a store and spend 400 or 500 Linden on a dress, if they can get a dress of similar quality for free or very cheap from a reseller?"
According to the laws of the United States under title 17, of the U.S. Code, copyright affords the creator protection from gainful reproduction of their creations. Apparently there are creators in Second Life that believe Linden Lab is responsible for enforcing that protection whether it be through technical Digital Rights Management (DRM) solutions, or through intervention and police action. I find this ironic and humorous but regardless of my personal opinion, there are larger issues at hand in this world of digital emergence where every 1 and 0 can be, and is copied.

Today's bits have no inherent value. Like the pennies you leave at the cafe, they take up space and are not worth the price of transport. Yes, I mean Ziggy Quirk's teddy bear is intrinsically worth nothing and it does not matter how many hours she spent crafting it, in the space of time approaching zero, it can and will be copied. Copyright does not protect you from copying. The second half of the copyright is the gainful part; technically you are protected from gainful reproduction but that protection occurs if *you* decide to take action to uphold your own rights. This is where the mysteries of the DMCA and attendant legal proceedings get murky, and generate urban myth. You must file a DCMA infringement notice to the letter of the law. Note in the Linden Lab policy it states very clearly:
When a valid DMCA notification is received, the service provider responds under this process by taking down the offending content.
See the word "valid"? This is the first gate, invalid requests do not even require a response. If you file an invalid DCMA notice, you aren't going to get a red-lined copy back like you did in the 3rd grade. I am sure there must be some poor schmuck with the job title "DCMA Infringement Allegation Validator", sitting in a dimly lit room next to a gigantic shredder with In-A-Gadda-Da-Vita playing softly in the background. If you want to shine a little light in his day, go get a template to follow and follow the technicalities precisely but modify it to your specification situation; this is no time to be careless.

From the Linden Lab policy, the notification must:
  1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon (i.e., describe the work that you own).
  2. Identify the in-world item that you claim is infringing on your copyright, and provide information reasonably sufficient to locate the item in-world. For example "The allegedly infringing work I am referring to is located on the map area labeled 'Freelon, 104,30,56'."
  3. Provide a reasonably sufficient method of contacting you; phone number and email address would be preferred.
  4. (Optional) Provide information, if possible, sufficient to permit us to notify the user(s) who posted the content that allegedly contains infringing material. You may also provide screenshots or other materials that are helpful to identify the works in question. (This is for identification only, not to "prove" substantive claims.)
  5. Include the following statement: "I have good faith belief that the use of the copyrighted materials described above and contained on the service is not authorized by the copyright owner, its agent, or by protection of law."
  6. Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
  7. Sign the paper (sic) [You have to include a real or digital signature.]

If your notice has all of those elements, then it should be valid. If it misses any of those elements, it will very likely be rejected, forcing you to refile your notice and causing a delay in getting resolution. A good overview of how to write an effective DMCA notice is here. Note that it costs nothing to file a DMCA. However, you are liable for damages for false claims, so be careful if you try to allege an infringement unless you are certain. There are plenty of resources available to individuals that have the wherewithal to pursue them. If you want to walk through specific details and examples, head over to Chilling Effects; it is primarily focused on web sites, but it has very helpful information.

IMPORTANT NOTE: I am not a lawyer and nothing in this post is to be taken as legal advice, counsel or otherwise . This it is based upon my personal research into copyright law and the DMCA, it is not to be taken as legal truth. If you have a question about these issues, please consult an attorney.

So filing a DMCA notification just the first step, it's easy to stumble and therefore equally easy to understand why there are so many claims from the Second Life community that "I filed a DMCA notice and Linden Lab never responded!". There is no requirement to respond to an invalid allegation, and it is not in the interest of Linden Lab or the community for valid notifications to be ignored.

That is the DMCA story, which doesn't really address Ziggy's question about copyright infringement. But realistically, her question isn't *about* copyright, it's about the dynamics of an emerging marketplace. I would argue that even if if all copyright violators were stopped (a certain impossibility) that her question would still exist because 1s and 0s have no value outside the context of the experience. The fact that anyone pays anything for virtual goods is not about tangible value, it's about the intangible human elements that we so often forget, or have failed to truly recognize.

Ziggy's bear is worthless, however, bear experience and culture has value, real value that can be translated to the marketplace so that people will actually pay potentially more and more often for her bear than for a copy. There are many other components that make up a valuable offering that can and will thrive in a virtual marketplace, and Kevin Kelly lays out a few in his article that resonate well within the Second Life culture. I'm assuming you followed the directions and have read Kevin's post, so I'm going to just dash in starting from "What is it that can't be copied?" Perhaps the most convincing example, trust.
There are a number of qualities that can't be copied. Consider "trust." Trust cannot be copied. You can't purchase it. Trust must be earned, over time. It cannot be downloaded. Or faked. Or counterfeited (at least for long). If everything else is equal, you'll always prefer to deal with someone you can trust. So trust is an intangible that has increasing value in a copy saturated world.
I've blogged before about trust in the context of Identity Verification, but in this case trust means the very essence that powers an on line interaction. I would argue that trust is the very thing that drives every social network and certainly every successful transaction. In Second Life, we have very few externally visible trust indicators such as e-Bay rankings, so we ultimately rely on word of mouth, recommendations by friends and previous encounters. The problem with trust is that it's so .. esoteric. It requires a significant up front investment which is why many of the brick and mortar companies fail in Second Life, but trust alone will not answer Ziggy's question.

There is an air of "do it or else" about Ziggy's plea. Do something, Linden Lab, or else Second Life will become a deserted digital content wasteland. There are accounts of individuals leaving the Second Life platform "because" of this situation, and in the short term there may be some disruptions to the economy but I don't believe that any sort of short term fix will actually stabilize the situation. If these virtual economies are to remain vibrant, then the forces that make the human transactions so compelling must take more of a center stage. To answer the questions, one must tap into the essence of human to human exchange which requires some new thinking about "sales".

The answer to Ziggy's question is a conundrum, and a powerful one at that.
People will buy from true content creators that create experiences and give away single elements of their creations ..for free.
I am not suggesting creators "give away the store", but rather rethink what constitutes their creation beyond a logically linked set of bits. We are in an experience economy, whereby people will expect products to extend beyond the shrink wrap and encompass a multi-dimensional existence - striking emotion, connection, meaning - and thereby attendant loyalty. I am not talking mere brand loyalty, but loyalty to the ideal, the atmosphere, the energy that surrounds the mere bits. To build this type of offering, creators must build on the intangibles, earn trust, build community, raise the bar and stretch the canvas in new ways.

Fortunately Kevin lays out "eight generatives, better than free".
  1. Immediacy
  2. Personalization
  3. Interpretation
  4. Authenticity
  5. Accessibility
  6. Embodiment
  7. Patronage
  8. Findability
Take a look at each in the context of Second Life's marketplace, and you will find some creators that are already embracing this framework, and doing so very well. A personal favorite is Kriss Lehmann and his Straylight Botanical Gardens. Let's look at what Kriss does within Kevin's framework; I think he hits on at least six, and probably seven of the eight points.

Kriss ...
  • uses subscribe-o-matic instead of a group for updates, which provides a sense of immediacy on new product offerings. [Side note - subscribe-o-matic is an extraordinary product, if you are a business owner I urge you to check it out. This is not a paid advertisement, just good advice]
  • offers products with permissions that allow people to modify (personalize) his content within suitable constraints. He fairly sets a price differentiation fo this allowance.
  • offers products are uniquely authentic and innovative within a market (landscape and plants) that was largely dominated by a couple of big players, most notably the Heart Garden Centre . You might find sculpties running rampant around the grid, but you can differentiate a Straylight product without much difficulty.
  • creates an experience and rich atmosphere at Straylight that emphasizes his products in context, rather than just a storefront. People go to Straylight, just for a walk and may ultimately stumble upon a "must have" resulting from the experience.
  • leverages the enormous Second Life flickr community to make his products not only findable, but desireable and an important element to a community of photographers hungry for rich, colorful open spaces and seductive nooks. How many flickr images do you see of fairies lounging around the Heart Garden Centre?
I don't think Kriss offers any "tangible" product for free (yet). If he does, please let me know. But what he does offer is a rich product offering, the experience is free, the community is free the access to relevant information on product releases, all free. There is no doubt that Kriss' landscaping products are powerfully creative, but put them side by side the fantasy plants at Heart Centre instead of in Straylight, and I'm not sure the product differentiation would be that great. It's the entire package that makes Straylight Botanical more compelling.

So my answer to Ziggy, is ..

Without intangibles, there is no reason someone would spend more money to buy a original over a reproduction. The intangibles are not out of reach, but may require that content creators reach beyond their individual craft, collaborate and develop community. And, if all the current content creators leave Second Life, there will be another wave standing by to take their place. The motivations for content creation are as diverse as the opportunity to fundamentally change the ways we asses value in the digital landscape .. it's an interesting time indeed but we are no where near the wasteland.
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