Monday, December 14, 2009

Virtual Property Rights Manifesto: Consumers, Copybots and Common Sense

Fair Use

The only way for consumers to protect virtual property acquired in Second Life and gain full control of legally acquired resources is to copy digital assets to their own hard drives. For most inventory items, this requires logging into Second Life with one of the copybot clients that circumvent Digital Rights Management (DRM) limitations. There are two compelling reasons to go to the time, trouble and risk:
  1. It is the only way to take your bought-and-paid-for virtual property to other grids. I'm puzzled that most people take for granted that the hundreds of dollars of virtual goods they've purchased are stuck on Linden Lab servers, even though the items are technically compatible with other grids. In the physical world, no one would dream of accepting laws restricting the movement of personal possessions from one country to another. It makes no more sense in the virtual world.
  2. It is the only way to protect assets from vanishing in the event of intentional or accidental deletion from Linden Lab servers. As I posted a year ago in "You Don't Own Crap", The Second Life Terms of Service (TOS) Agreement gives Linden Lab the right to delete, alter, move or transfer any of your so-called property without cause or notice. It's ironic that a primary reason people shy away from illicitly backing up their inventory is the fear of being banned and losing all of their virtual possessions.
Copying virtual goods purchased, for personal use, is neither content theft nor piracy. Although the DMCA prohibits the creation and distribution of tools to circumvent DRM protection, it's still our "fair use" right to make copies. Seems contradictory, but it's the current state of U.S. law:
Congress did not intend to regulate the conduct of individual users with authorized access to copyrighted works, since their liability was controlled by the existing law of copyright infringement and fair use. In this sense, there is a “user exemption” implicitly recognized in the DMCA for the fair use of copyrighted works. From Preliminary Injunction Ruling on RealNetworks v. DVD-CCA
It is certainly both illegal and unethical to acquire or share virtual items without the consent of the intellectual property owners. But restricting fair use through DRM and TOS policies is an institutional wrong that undermines the rights of every single Second Life resident. The legitimate way to deter content theft is to go after those who steal, not to treat every consumer like a latent thief.

If the record and movie industries had their way, none of us would be able to burn music from purchased CDs or transfer video for use in external devices. That way,  they could profit from selling us the same content for each device. Second Life permission restrictions that prevent sharing virtual property between "alt" accounts has the same implicit anti-consumer ramifications.

It took the unrelenting efforts of renegade software developers, actively dissenting consumers and organizations like the Electronic Frontier Foundation (EFF) to release digital music from DRM. The fight to free video content is still underway. The battle to liberate virtual property has barely begun.

I call on virtual world residents to take up the call, exercise their fair use rights and support technical and governance initiatives working to remedy the current situation. Here are a few initial steps anyone can take:
  1. Speak out against the idea that copybot technology is inherently evil. Until approved technology is available, it offers the only way for consumers to secure their personal virtual property rights.
  2. Back-up your digital assets and use them as you see fit. 
  3. Support organizations such as the EFF.
Due to the underground nature of clients that bypass permissions to copy and back-up items, and the necessary pseudonymity of their authors, it is possible that some versions may have trojans or other hidden software attached. So be sure to run any files you download through a good virus scanner. That said, I've seen no documented cases of nefarious code.
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37 comments:

sapphireweatherwax said...

Bravo. Though I'd add that "content theft" is a misnomer anyway, as copyright infringement is not the same thing as theft. That's not to say it's okay; the misuse of the term just bugs me.

annotoole said...

Well it doesn't matter anymore does it. SL is going to be dead in a year anyway. Watch the PMLF at the top end. Revenue from Second Life is evaporating at the hundreds of thousands of dollars per month rate. Because of people like you.

sapphireweatherwax said...

No. People like Botgirl - and I - are not promoting ripping anyone off by reselling their intellectual property. Backing up what we've bought does not take revenue away from anyone. And neither is it criminal activity, as you say in your tweet.

Lauren Jones said...

Fantastic post and one I completely agree with. I've never ripped off a content provider in my life but they rip me off by denying me fair usage of the things they sell me. Until content creators give me fair usage, I won't support them. I'll continue learning to create my own content and will then give that content away to anyone who wishes a copy. It might not be great but I'd rather have goods that I own and have fair usage of than continue to be treated unreasonably by the content creators. There was a time when I'd regularly spend several thousand L$ a week on content, tier and so forth. Now I spend maybe two or three hundred L$ a month (not counting uploading of textures/sounds etc). That's why the SL economy is dying - because the content creators have destroyed their own markets by enforcing unreasonable terms.

Imagine going to your local store and buying potatoes. Only those potatoes now come with a EULA which states in what way they can be prepared and cooked and who you can then serve them to. People would very quickly tell the local store where to go and start growing their own potatoes. The store goes out of business and this causes further problems for the community. But ultimately those problems are down to the fact that the stores tried to enforce unreasonable demands on the consumer.

If content creators stopped treating customers like content thieves and with some respect, then maybe the economy would recover. It will probably never happen but still.

MaggieL said...

I have trouble beleving that copybotting activity is having anywhere near the impact on PMLF that unresolved bugs and other content breakage caused by unstable interfaces does in spurring the exodus creators of quality content from the Linden grid does.

Honour said...

OK - I'm still thinking this through but some initial thoughts:

So when I thought I was selling you a no copiable item in SL - what that really meant was that you would only have one copy of it in each world you went to? In my mind - until there's a central inventory for the metaverse, I think I was selling you something for one world. Silly me :) However, pricing for the metaverse rather than SL could certainly take care of things like licenses for that.

I assume that if somebody copybotted your inventory in another world and started selling those items you bought from me it would be up to you to put a stop to it?

Or would any perceived infringement of my rights still be my responsibility to chase down? In the latter case I'd be spending all my time surfing various worlds trying to decide if the apparent owner of an item I had built was the original purchaser.

I'd continue the potato analogy but as a consumable there are too many weird variables. :) Instead, suppose you buy a car in the US and intend to continue using it in the US. Do you expect the manufacturer to supply you with a free duplicate everytime you go to another country - because, after all, you already bought and own one?

I do need to spend some more time thinking this through - but those are my initial reactions. I do agree this issue needs to be addressed, I just don't think "fair use" in SL implies a metaversal license yet. It will, but until inventories are centralized, content creators might as well set up shop as charities doling out items for metaversal gypsies. :)

Lauren Jones said...

@Honour

"Do you expect the manufacturer to supply you with a free duplicate everytime you go to another country"

Of course not. However I can take my car with me when I go to another country ;)

Honour said...

Lauren :) True - but in my analogy you were leaving it in the US. You would need duplicates to use it in other countries. :)

Lauren Jones said...

@Honour

"True - but in my analogy you were leaving it in the US. You would need duplicates to use it in other countries. :)"

Which is a fair point of course :)

The crux of the matter for me is this. Having spent time enjoying the creation of my own content, I can understand that content creators deserve fair reward for their work. I really do and I certainly don't condone content theft. But while I believe this, I also believe that the consumer deserves fair play too. Too many content creators are up in arms demanding better protection but, just like in meatspace, the consumer needs protection too. Now when consumer rights are ignored, the consumer will either turn to pirating of content, creating their own content or simply doing without. In my case I mostly do without (but then I have two and a half year's worth of inventory to play with, something that new residents may not have the luxury of) although I'm gradually learning to script and build my own content.

You can find more of my thoughts on this subject on my blog here http://whenitchanged.blogspot.com/2009/10/intellectual-property-in-cyberspace.html

Lalo Telling said...

@Honour - You are as much constrained by the ToS as your customers. When that was written, there were no other virtual worlds where the SL viewer could gain one entry. At present, as written, you cannot grant your customers the license to take their purchased items elsewhere in the Metaverse, even if you wanted to. "Legal" backup copying of one's SL inventory to one's computer (as in the Emerald viewer, for example) only works for items one has personally created.

In short, we do not own what we believe we have paid for.

Forget the car -- let's look at your analogy again: If the current rules restricting inventory export applied in the real world, a person traveling from, say, the US to Canada would have to divest themselves of everything, and walk across the border naked -- unless they had not merely personally made everything they own, but had grown the cotton for the fabric and thread, raised the cattle for the leather, mixed the plastics, and formulated the dyes... and could prove it!

I see two ways in which content creator/sellers in Second Life can amend this ridiculous state of affairs. One is to set up shop in those other virtual worlds so that we might at least obtain a copy licensed for use there. The other is to join your customers to have the rules changed.

Honour said...

Lalo - oddly enough when I go to a new virtual world I'm pretty much naked and have an empty inventory unless that world gives me something when I register. :)

As it happens I have sold metaversal licenses for things I have made. To people I trust at this point. I disagree that everything I sell has that type of license embedded in it.

Botgirl Questi said...

Thanks for all the comments so far. There's also a very interesting comment thread on Plurk.

My "light bulb moment" on this issue was when I realized that the core questions of digital property rights in virtual worlds are the same ones being wrestled with around digital music and video content in the physical world.

I suspect that as we move from the quasi-monopoly of Second Life into a more competitive marketplace, consumer pressure will drive a less onerous system of DRM. Apple didn't dump DRM out of the goodness of their hearts, but through competitors like Amazon offering a viable alternative.

Instead of going to war with consumers, I think Second Life creatives would be better of getting ahead of the issue by figuring out how to offer more reasonable licensing, perhaps initially through agreements with OpenSim Marketplaces like the one associated with Reaction Grid.

Anyway, this is a complex issue that deserves plenty of thoughtful discussion, new ideas and cooperative movement towards some mutually beneficial solution.

Tateru Nino said...

@Ann: It's important not to misunderstand the PMLF figures. Due to the bucketed nature of the published data the decline may only represent a few dollars in actual profit deltas.

Secondly, it is also far from the first such decline to have taken place.

Thirdly, the data for the next month ticked upwards again. So far the trend for PMLF continues to be growth in all the buckets - though some of them may be leveling out a bit, there's no sign of any trend towards decline.

Tateru Nino said...

On to the matter at hand.

"It is the only way to take your bought-and-paid-for virtual property to other grids"

According to the Second Life terms of service, you don't actually own any of that stuff. It could be quite reasonably argued that no actual purchase took place in a legal sense, since there's no transfer of ownership.

See SL TOS, section 3.3. Linden Lab remains the owner of all the data (which would include virtual items). I remember reluctantly agreeing to that. I'm sure we all read the relevant section of the TOS.

That limits our authorized access to the goods in question, eliminates those property rights, and renders the preliminary RealNetworks v. DVD-CCA ruling from consideration.

Sad, but there you go. Unless you choose to argue that the Lab has engaged in misrepresentation, which gives you an angle to reacquire the rights that you signed away when you agreed to the TOS -- if and only if you're willing to argue that in court, and manage to convince a judge.

Lalo Telling said...

@Tateru -- Of course, you're correct. We are conditioned by our real lives to believe we have purchased an item, as if it were (say) a pair of jeans in our closet we then have the liberty to wear anywhere. In fact -- and, it seems, in law -- we have merely obtained a license to use a bit of code that is rendered as "a pair of jeans", but only within the larger bundle of software that constitutes the virtual world in and for which the license was obtained.

Some, it appears, would say, "That's right, and your beliefs are delusional, so get over it." Others (myself among them) would say, "Licensing can and should evolve to embrace the evolution of virtual worlds that share the same core software (e.g., Second Life and OpenSim)."

@Honour -- I would like to learn more about the "metaversal license" you mentioned in your last comment. How, precisely, does it work?
- - - - - - - -

Meanwhile, here's a blue-sky idea:

As I understand it, a virtual item exported from in-world Inventory to local hard drive exists as an .xml file. Legal export restricts said items to those for which the "creator" attribute embedded in the file matches the key of the avatar whose Inventory it resides in.

What prevents a content creator from negotiating an out-of-world sale of the .xml file itself? Make that file "read-only". When imported to another compatible VW, it will retain the correct "creator" attribution, and the copy/mod/trans permissions its creator intended.

Obviously, creators will want to charge a premium price for this method of making their goods transworld-capable. The applicable phrase is "what the market will bear". I suspect such transactions could be added to the options available in current and future out-of-world shopping websites (slapt.me, for example), as a direct download to the purchaser's computer -- thereby saving creators from having to set up their own.

Workable compromise?

Botgirl Questi said...

Terms of Service Agreements are a key focus of the Electronic Frontier Foundation because TOS tend to be one-sided, unclear, littered with unenforceable language and often contradictory to marketing materials and other company communication.

So while I understand it is Linden Lab's position that we "don't own crap", I think that perspective is counter to their own marketing materials, is not in the spirit of the way people commonly think of and use virtual property within Second Life and is a regressive approach compared to even the Atilla The Hun mentality of the music industry.

I'm not a lawyer, and even if I was, there is a wide range of positions related to intellectual property, especially as it relates to digital content. So we'll need to see what the courts eventually decide on some of these questions.

Finally, I think that it makes no sense to go into the digital age where all personal property is actually owned by the masters of the worlds we inhabit. Seems that if nothing else, a certain amount of virtual civil disobedience is in order.

Botgirl Questi said...

Lalo: I like the approach you've taken to think about new technical and governance approaches that can better balance the interests of creators, consumers and virtual world hosts.

Prokofy said...

Advocating the use of copybot under the guise of "needing" to back up your inventory is merely a whitewash of criminality.

In real life, you don't get to "back up your inventory" -- why would this be an absolute necessity in SL?

I'm with Ann on this one. *Because of people like you*.

Facilitating the erosion of property distinctions just because it's "yours in your inventory" doesn't sanctify it.

Honour said...

@Lalo The "metaversal license" was for items I had made outside of SL - in this case textures. Both my client and I were in agreement that nothing would be exported from SL into another world. So the client wasn't taking trees or flowers I had made in SL, they were buying the license to use the textures when creating their own trees and flowers.
The license covered both the use of the textures and the location - in other words, in which worlds they would be used. The license was for the client's use only and did not include the ability to sell or distribute the textures to anyone outside of the client's organization.
This has led me to consider what other ways metaversal licenses might be written. But I haven't had enough experience to say what all the ramifications might be. I will say that this was an organization I trust to keep its word. :)

Lalo Telling said...

@Honour -- Thank you, I understand now: "a gentleman's agreement" (never mind the gender non-neutrality).

Even so -- if the terms and conditions were recorded, a copy of the agreement (with names redacted) might make an interesting starting point to discussing, or even implementing, something similar on a wider scope.

Honour said...

@Lalo - well in this case the license is in writing :) But I still have to trust them to keep to it.
I should have mentioned that they could have used me to build the items as well but didn't need that type of support.
I meant that it has led me to think about metaversal license implications in general. :)

Otenth Paderborn said...

@Prokofy "In real life, you don't get to "back up your inventory""

Of course I do. Software licenses (to use the clearest analogy) routinely allow a backup copy.

MaggieL said...

--------------
17USC§117: Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
...
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
-----------------

Virtual goods are, by any sensible definition, computer programs.

JeanRicard Broek said...

posted this to Dusan's blog:

I think that you started out the post with an important question. Do we (consumers) see digital objects as real “things” and therefore we feel we have purchased them regardless of the TofS or laws?

Just to confuse maters & extending the thread about license versus copyright & what is a purchase see the following.

http://www.pcworld.com/article/172973/in_autodesk_case_judge_rules_secondhand_sales_ok.html
&
http://www.eff.org/deeplinks/2009/10/it-s-still-duck-court-re-affirms-first-sale-doctri

I am not sure if Autodesk has appealed the ruling. In the long run, it will be market forces that decide these issues.

Botgirl Questi said...

MaggieL and JeanRicard: Thanks for the references. I think that as much as anyone wants to make any of this a clear cut, black and white issue, the dynamic and disruptive nature of technological change is probably going to keep us in somewhat shifting legal waters for the foreseeable future. Unless you have a good crystal ball, I think the jury is far from out.

MaggieL said...

US copyright law is clear that in the case of a computer program, making an archival copy to preserve access to rights held under a licence is allowable. That provision does not permit use of the archival copy outside the bounds of the original licence grant.

Pocoloco said...

I'm sorry MaggieL, your reference to copyright Law and it's explicit fair use and archival rights may be pertinent but virtual items are by any sensible definition data objects not the computer program that renders the object useful.
We can now see the problems this scenario presents. And I'm not sure if it's an either/or situation.
Content creators were possibly foolish creating _data_ collections in an environment that demands they turn over all rights to those data collections to a single party (Linden Lab Research) See the off quoted Section 3.3 of the TOS
OR
Linden Lab is presenting a contradictory environment when they opened up the source for the client and made the ability to render those data collections offsite of Linden Lab hosts. Pretty much setting off this whole debate of when is one, if ever, allowed to render virtual objects (remember these are collections of data)that were first made available on Linden Lab hosts by agents other than Linden Lab employees or agents.

iliveisl said...

oh Botgirl, thank God your original post is shorter than Dusan's! i love him but that boy can talk! okay here's what i asked over there:

but it’s more than just my stuff. if i buy a copiable tree from Straylight (which I have and use 100’s of them) and then copy them to my Reaction Grid account for use on my land, that means it is in my inventory.

when i travel to another OpenSim grid with my avatar, a full copy of my inventory is now in the SQL db of that grid and can be exploited

Botgirl Questi said...

livesl: Hmm. As far as I know, the SQL database of Reaction Grid is secure. :) And I'm guessing that you wouldn't intentionally risk your own information on a grid you didn't trust. So I think in practical application, this wouldn't be an issue.

But hypothetically, I would say that if you did logon to a grid that you knew copied and distributed items in the inventories of users, then you would be complicit.

Dale Innis said...

Wow, interesting stuff here! (I'm way behind in my weblog reading over th' holidays.)

I think you're factually mistaken about the state of current law; while it's true that there's some good reason to think that fair use copyright-law exceptions are also DMCA exceptions, "fair use" in fact has a very narrow meaning, and is nothing like "uses that I think are fair".

The copyright office's description of fair use doesn't include making backups of software objects, by any interpretation that seems plausible to me at least.

I think Honour's point is very well taken; content creators are currently pricing their goods under the assumption that copy/mod/transfer applies and will be enforced. My moral intuition says that making a copy for backup is fine, but making a copy for every new virtual world that you go to is not; these seem very different to me, and I don't think they ought to be conflated.

As an aspirational statement, of how the world *ought* to be, I think it would be great if we could both backup our virtual goods, and transport them to other worlds, in ways that did not at the same time unacceptably enable copyright violation, and that content creators were aware of this and priced their goods accordingly. There is work going on on that, but it is a hard problem! Until it's solved, "copybot for innocent backup and interworld transport purposes" and "copybot for rights violation" unfortunately contain very very similar code, with all of the complications that that implies.

Ann's prediction of the death of SL is amusing as always. :) I will gladly take that "dead in a year" bet, if we can agree on just what "dead" means. I think SL will continue to thrive for at least a year, and really for the foreseeable future.

Lalo: 'Make that file "read-only".' Good luck with that. :) An XML file is just plain text; I can't think of any way that such a file could be "read-only" in the sense required for this idea to work. That is, indeed, exactly the crux of the problem.

Botgirl Questi said...

Hi Dale: Better late than never! On the fair use question, an article in Wired Magazine stated that the most recent court decision on DVD copying " left open the door that copying DVD’s for personal use “may well be” lawful under the fair use doctrine of the Copyright Act, although trafficking in such goods was illegal."

So creating or distributing software to circumvent DRM is not legal, but it seems that using such software to back-up legally acquired goods is likely within the law.

In another recent decision that is relevant to Second Life, a court ruled that it is legal to resell software one has purchased, even if the software license prohibited such sale.

The "license vs. sale" issue is heating up and there are a number of pending court cases this year.

It's really curious to me that content producers in Second Life seem to be mostly fixated on fears of possible harm from individuals copying their content, when the actual battle I think they would be better of fighting is the TOS terms that are very one-sided in the interests of Linden Lab, for example:

"You also understand and agree that by submitting your Content to any area of the Service, you automatically grant (or you warrant that the owner of such Content has expressly granted) to Linden Lab and to all other users of the Service a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual License, under any and all patent rights you may have or obtain with respect to your Content, to use your Content for all purposes within the Service. You further agree that you will not make any claims against Linden Lab or against other users of the Service based on any allegations that any activities by either of the foregoing within the Service infringe your (or anyone else's) patent rights."

Anyway, that's my two cents today on the topic for the moment.

Dale Innis said...

Yeah, that first decision carefully doesn't rule *either way* on whether Fair Use covers making personal backups; my guess is that Fair Use is murky enough that the judge didn't want to get into it. I will stick by my story that current law does not say that personal backups are fair use, unless there's something stronger that I don't know about.

But the decision explicitly extending the Doctrine of First Sale to software is *fascinating*; thanks much for pointing it out. Clearly I've been out of touch. :) That seems like a huge and important thing to me, and I'm going to have to read it in detail (and keep an eye out for future cases that build on or conflict with it).

Dale Innis said...

Oh and P.S. on content creator fears of copybotting vs. TOS provisions, I think it's because content creators (humans) tend to be pragmatists: there are easy stories to tell, and actual examples to point to, about bad guys ripping off stuff and reselling it for cheap. The stories about how LL might abuse those TOS provisions seem, I expect, somewhat less plausible and more paranoid. At least they do to me. :)

MaggieL said...

You don't have to interpret fair use to arrive at software backups being allowed; 17USC§117 grants that explicitly. The tricky part is deciding which works 17USC§117 embraces. All digital media are in some sense "a computer program".

Pocoloco said...

That's an interesting take MaggieL, though I fail to see it's application being germane to the subject at hand.
1) the vast majority of digital media is data. Audio, pictures, video, or some mix of them.
2) Section 102 of Title 17 clearly states
--
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
--
Oddly enough that clearly encompasses "computer program(s)"
So you justify backup copying of digital media that consists of data with an exception in Fair Use Copyright protected Work that applies to Works that expressly cannot be copyrighted, aka computer programs.
It would seem to me this exception would apply to backing up say the necessary software embedded in a DVD player should the hardware require maintenance where such maintenance must necessarily destroy or remove the original copy of software used to make the hardware able to perform it's expected tasks. But in no stretch of the imagination would apply to DVDs accessed by the player.
In our virtual world scenario I could see this applying to backup copies of the Second Life viewer software but there is no clear path to backing up any data accessed by the viewer. aka avatars, prims, content (inventory) of prims, Estate or Mainland parcels and the objects and textures that are associated with those locations, in short anything visible in the viewer. The computer programs that make this interaction possible reside on the servers and within the client. Obviously clients of the server have no right to access the programs on the servers, let alone make copies of such software, except to interact with that software. And I doubt you will find much complaint with making copies of the viewer software itself. Just don't try to take creator credit for that software.

MaggieL said...

Pocoloco, are you seriously trying to say that computer programs are not copyrightable? That's going to come as a very serious surprise to the entire industry. :-)

17USC§102(b) pertains to an "idea, procedure, process, system, method of operation, concept, principle, or discovery". Not the *expression* of them, which it explicitly refers to as an "original work of authorship", and thus subject to both copyright and 17USC§117.

Here the distinction is drawn between an algorithm or method and code that implements it. The first is (unfortunately, to my mind and many others) the subject of patent law, the second of copyright. There's a metric buttload of case law treating computer programs as copyrightable expressions.

Getting a court to adjudicate a separation of what is "program" and what is "data" in a von Neumann architecture should be comical at least, considering that the erasure of that distinction is the defining characteristic of the architecture. Even a compressed image file could be sensibly be considered a "computer program" since it is in fact a series of instructions to an interpreter to reconstruct an image.

Houstonlaw said...

Nice article on virtual property rights! Piracy has damaged all.

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