September 27, 2009
by johnny
I’ve been caught up with work and social engagements recently, and so completely missed the latest big Second Life story; Stroker Serpentine’s lawsuit against Linden Lab over the thorny issue of IP rights, and the Lindens’ efforts, or lack thereof, to protect them.
The details of the case, and its merits, have been well covered in the Alphaville Herald and New World Notes, and there’s no shortage of comment around the SL blogosphere (like here, here and here). In such circumstances any opinion I care to offer is bound to be superfluous, as well as being thoroughly uninformative, seeing as how I have no knowledge whatsoever of contract and copyright law as it is applied in the state of California. But what kind of blogger would I be if I let ignorance of the topic or fear of repetition stand in the way of weighing in with my two cents worth?
Everyone agrees that content theft is an issue; Stroker’s case revolves around the question of whether the Lindens are mere providers of the framework in which the criminality occurs, and thus not responsible for it, or if the fact that the Lab profits from copyright infringement by collecting dues from the malefactors makes it part of the evil enterprise. The precedent that is being quoted is the case of Louis Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., et al., where the luxury goods maker was awarded $32 million damages against a firm that hosted websites selling counterfeit Vuitton items. The Taser case seems relevant too, as well as the Lab’s previous actions in banning in-world gambling and banking, which presumably stemmed from a realisation that the US Department of Justice was likely to regard hosting illegal activity as an offence in itself.
The Lindens’ defence will probably rest on the “safe harbor” provision of the DMCA, but they may be on shaky ground there, since any claim to be at one remove from the murky business of SL commerce would be rather undermined by their ownership of XStreet, and their record of assisting aggrieved creatives with DMCA filings is allegedly very poor. There is some speculation that the Second Life Terms of Service, specifically the sections prohibiting residents from suing the Lindens, might be the Lab’s get-out-of-jail card, but it seems unlikely that any court would enforce a contract containing such obviously unfair terms.
All these legal questions are mildly diverting, but what is much more interesting is the underlying psychology. It reminds me of a gritty crime movie, the part where the heist has gone wrong and the thieves have started to fall out. One can only imagine that Stroker’s sex-bed business must have hit the skids before he would pursue the nuclear option of suing the Lindens. I’ve no doubt that having his designs ripped off has at least partially contributed to this, but I suspect that the inherent limitations of the virtual economy (which we’ve previously discussed here and here) have had a more significant impact.
It feels as if there is more to this than mere financial considerations though. What Stroker and other designers want is not just money, but respect, due acknowledgement of their creative talents. Unfortunately, outside of a small subsection of the SL population, being a virtual clothes/hair/whatever producer just doesn’t count for very much, in terms of cash or kudos. This may or may not be unfair (I tend to think it is some way off being the worst injustice in the world), but it’s a fact, and no amount of complaining on the internet or suing Linden Lab is going to change it.
Looking at it more analytically, there also seems to be an Oedipal theme to this lawsuit. By all accounts Stroker was a Joe-the-plumber type before Second Life gave him the chance to reinvent himself as a virtual pornography mogul; it seems ungrateful, to say the least, that he should set in train a process that could theoretically ruin the company that made his good fortune possible. The Lab may have begat Stroker, but he has good reason to think that he is not Philip’s favourite son; the sex business of which Stroker is the most prominent public face is often cited as the biggest threat to the Lindens’ future prosperity. Stroker would not have to be particularly paranoid to see the regulation of adult content on the grid as an attempt to castrate him (figuratively and literally; ridding SL of penises seems to be one of the prime objectives of the new rules). Perhaps the case represents Stroker’s unconscious desire to kill his virtual father before he himself is annihilated by paternal rage.
What would be the most desirable, or least undesirable, outcome of the case? Should Stroker prevail it would surely be a Pyrrhic victory. The suit is a class action, so every frustrated shopkeeper who ever had a texture pilfered would be able to jump on the bandwagon, exposing the Lindens to potentially unlimited liability. Even if this doomsday scenario didn’t come to pass, an adverse judgement would force the Lab to radically change the Second Life retailing landscape, probably by introducing some sort of merchant registration and approval system, shutting out the small scale entrepreneurs who are, everyone says, the lifeblood of SL creativity.
And what if Stroker loses? There has been the usual Atlas Shrugged-style posturing from various bloggers, with talk of how an exodus of talent will leave the rest of us wailing and gnashing our teeth, bereft of prim hair and erotic animations. In reality, of course, little would change, since any designers who did flounce out would be quickly replaced by others with equal skill and a rather more realistic estimation of the value society places on virtual creativity. It would be for the best in the long run, since Second Life can only benefit from a population that is more interested in enriching the collective experience than amassing personal wealth.
So I’m hoping that the case goes to court, and that Stroker loses. I doubt that this will happen though; the Lindens’ corporate lawyers will want to avoid the uncertainty of going to trial, and will push for a settlement, which I suspect is what Stroker has had in mind from the start. Even if they don’t admit liability the Lab will have to introduce more regulation to avoid facing similar actions in the future, and the nature of Second Life will change forever.
Whatever happens, it feels like a chapter, if not the whole book, is drawing to a close.
It’s the end of our elaborate plans…
Second Life Shrink 
