Protecting your work

Let's start by talking copyright for a few minutes. From your blog to your virtual-environment creations you, the creator, have rights. You have the right to profit from your work (or the right to choose not to profit from it, if you like). Those rights are nothing without protection.

In almost every part of the world, while copyright laws disagree on some of the details, copyright is automatic when you create your work. The USA will require you to register your copyright before filing any infringement lawsuit, but short of a lawsuit you get some protections up-front.

Something to note, however, copyright does not apply to names, titles, ideas, slogans or short phrases. You should look into trademarks and patents for that. It also doesn't apply to Internet domain names, and you should refer to ICANN for those. From 1990, you're able to also copyright architecture, however, which is nice.

To defend your copyright, you should ensure there's a verifiable record of the date. Blogs mostly do that automatically, Second Life's content upload systems track the date as well, and publishers always include print and copyright dates.

Publication of a work isn't necessary to gain protection. Copyright vests in you the moment you create it, even if you never show it to anyone.

If there doesn't seem to be any other clear means, you can always try the "Poor Man's Proof" system, and send a copy to yourself by registered mail, then leave it unopened in your files in case you should ever need to prove the creation date. Registering your work through your national copyright organization is generally preferable to that, but isn't available in every country.

Most of us will never actually need to present that sort of proof in our lifetimes, thankfully.

Copyright basically grants the creator the sole rights to copy the work, or create derived works, or to grant others permission to do so, but for a limited amount of time only. Copyright can be bought and sold, licensed, given freely or inherited. As a creator you can choose to profit from your work, or to allow others to do so, to give out your work freely, or allow others to distribute or use your work under any lawful conditions you wish. When your copyright eventually expires, the work becomes 'public domain', and may be used by anyone, at any time, for any lawful purpose.

'Fair use' (or 'fair dealing') constitute a set of exemptions where people can have limited rights to your work without requiring your permission or license. Exactly what those exemptions are varies from country to country, and they're a bit involved to go into here, but you should be aware of them.

In Second Life, you should always pay particular attention to Next Owner Permissions, and you should take especial care to set them appropriately.

The three provided permissions are Modify, Copy and Transfer.

When an item is given or sold to any other person, those permissions will be in effect.

Modify allows the new owner to alter the item.

Copy allows the user to make as many copies of the item as they please.

Transfer allows the item to be given away or resold, at their option.

The system isn't perfect, and you should consider carefully what permissions you should set on an item.

Some combinations are useless for some kinds of items. A notecard, for example, cannot be read if it has neither Modify nor Copy permissions. A texture with Modify+Copy+Transfer permissions can be downloaded to your hard-drive.

Having Modify, Copy and Transfer permissions all set (known as 'full perms') is essentially the technical equivalent of making your Second Life creation public domain. Functionally you're surrendering all control over it once you've given a copy to someone else -- unless you have arranged some licensing or other contractual arrangement with them. This sort of thing needs to be watched very carefully, because the genie is damn hard to put back into the bottle.

Likewise you should watch out with Copy+Transfer -- people may not be able to modify the object, but a popular item can be in half of the user inventories in Second Life before the week is out.

Unfortunately, certain businesses (texture wholesalers, for example) need to use both these permissions at times as a part of the content that they sell. That's why they always sell them with conditions, and a license describing the usage they are allowing. As a responsible user, you should always pay attention to those usage licenses -- almost everyone will freely disclose the terms before they sell so you know what you're getting, and what your limitations will be. If someone breaks a license though, a seller can lose all their business. Genies and bottles.

Mixing assets with different permissions into a single item can generate confusing circumstances. Creators need to watch out that everything is set as it should be. Boy Lane's Cool Viewer has a bulk permissions editor (which is being folded into the official Second Life viewer as of 1.23), which helps simplify things a lot. However, due to the nature of communications between Second Life viewers and Second Life servers, it is possible that it may not work perfectly at times (just like when you texture an object and sometimes not every face gets updated with the new texture).

A proposed feature, VWR-8049, is intended to allow advanced content creators to set permissions-masks (as is done with files on computers) to set the permissions the creator wants to have at the time the asset is created, reducing some of the fiddly workload involved. Assuming it is properly and thoughtfully implemented and tested.

Know your rights, exercise them with care and judgement, and respect the rights of others. Those are the keys to protecting your works, online and offline. The system works best when the majority participate willingly, whether they are creators or consumers.

Scary stuff HR.1966

Well, this is rather... interesting to say the least:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....

["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ...

["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

Now I'm all for civility and respect -- but doesn't this criminalize what would otherwise be protected speech?

This is the Megan Meier Cyberbullying Act, and you'll note that it covers blogs, text-messages, IMs, emails, telephones, virtually (if you'll pardon the term) everything more complex than tin cans and string.

This bill comes courtesy of "Ms. LINDA T. SANCHEZ of California (for herself, Ms. KAPTUR, Mr. YARMUTH, Ms. ROYBAL-ALLARD, Mrs. CAPPS, Mr. BISHOP of New York, Mr. BRALEY of Iowa, Mr. GRIJALVA, Mr. HARE, Mr. HIGGINS, Mr. CLAY, Mr. SARBANES, Mr. DAVIS of Illinois, Mr. COURTNEY, and Mr. KIRK)" and is earmarked HR1966.

Now this is pretty scary stuff.

Can an avatar sign a contract?

Short version: no. Slightly longer version: Don't be silly, of course not.

Let's start with what signing a contract actually means. Signing a contract means that you, in your capacity as a legal entity, are capable of understanding the contract, are making an intentional choice and have agreed to abide by the terms of the contract and any obligations or protections that it specifies.

In Second Life an avatar is actually only a placeholder representation of two rather more subtle concepts. All in all, there's an account, an agent, and an avatar. The avatar is the bit that you actually see. The agent is the bit that moves, talks and takes actions. The account mediates permissions.

You log into your account, your agent is placed at a location in-world, and your avatar is drawn in the vicinity of your agent. Usually the agent is an invisible point near your avatar's crotch, but the avatar can be drawn up to ten metres away from the agent.

When you choose to take an action the account is tested to see if the action is permissible, the action is then performed through the agent, and lastly there may be some side-effects on the avatar to represent visually what action is taking place.

None of these three items is a legal entity. None of them are capable of understanding the contract. None of them are able to make an intentional choice.

Anne Loucks made a device so that her cat could make the necessary key-press to click through EULAs (End User License Agreements). Did the cat agree? No. Did Ms Loucks agree? Yes.

Let's compare this with a more practical example away from the keyboard. I am handed a contract. I pull out my pen and sign it. Did my pen agree to the contract, leaving me free of obligation? No. The pen is an instrument (a proxy, if you will) with which I am causing agreement to be signified. The pen can't agree to a contract, so I must have to have done so.

I can't reasonably claim the pen is a party to the contract. Ms Loucks cannot reasonably claim that the cat is either, as she engineered the means by which agreement was given. Likewise, an avatar can't be a party to a contract any more than a pen, a cat, a sock-puppet or a houseplant.

Any reasonable court would immediately identify me, Ms Loucks or the user of an avatar as the responsible party -- because there is no other party that could be.

Now I'm going to say something just a little shocking. You aren't your avatar. Let's pause a moment for the obligatory, involuntary gasp of horror and perplexity.

Your avatar is a digital creation that shadows your actions within a virtual environment and visually represents them. Those visual representations aren't even entirely under your control. Assorted bits of software cause the avatar to do some things that are independent of your actions too.

Your avatar can't agree with anything. Walk away from the keyboard and come back when your avatar agrees with something. Better yet, read the rest of this blog, or maybe the comics. Because you'll have a whole lot of time to kill. Your avatar can't think or act or understand or agree. You are the one who does all of that.

Now, does that mean that Tateru Nino can't agree to a contract? No. Because that's me, and I'm a legal entity and all that. Tateru Nino is a nom de plume which is also attached to my account, agent and avatar. I can (and do) sign contracts with that name. It goes on my tax forms. Did Reginald Dwight sign his contracts as Elton John or as Reginald Dwight? (Answer: as Elton John).

It is legal to do in most jurisdictions, so long as you demonstrably have "no intent to deceive". If you're using an alternative name to avoid your obligations, then that's pretty much going to add fraud to any penalties for breach-of-contract.

How is it that Tateru Nino can agree to a contract (in Second Life or not), but the Tateru Nino avatar cannot? Because I'm not my avatar either. It's my faithful, and tastefully-dressed servant. My sock-puppet of digital pixels.

And sock-puppets can't agree to contracts either.

Valve suing Activision. Obligation shouldn't be that difficult a concept

Back in 2002, Valve had a bit of a dustup with Sierra over royalties. The original lawsuit went to arbitration, and after reviewing the case the arbitrator decided that Sierra should pay Valve US$2,391,932. It was less than Valve wanted to get, and more than Sierra wanted to pay, but everyone signed off on it anyway.

Fast-forward. Sierra was a part of Vivendi, and as a part of the merger last year, that debt is now a part of Activision-Blizzard.

So, Activision cuts the cheque to Valve, but for only US$1,967,796, basically because they felt that they'd overpaid Valve US$424,136 in previous years. Valve, for their part is filing a suit because Activision is not paying the agreed-on amount.

Now, that's a classic piece of stupid on Activision's part. The smart way to go, if they have indeed overpaid Valve previously, is to pay the originally agreed-on amount (US$2,391,932). That immediately closes their obligation with respect to the 2002 decision. Then they can file a lawsuit, or seek arbitration, or get Valve to agree to pay up, or to take a lesser sum of future payments. Whatever. They're in the clear, and their legal position is solid.

But, no. That would be too easy.

Instead they short-pay, essentially failing to meet their legal obligations, which opens them up to a lawsuit -- and potentially to the forfeiture of the US$424K (and perhaps more).

It makes me wonder if Activision's suddenly so desperate for cash that the US$424K is just out of their reach -- or if Big Bird is making the calls here. Actually, no - getting this right just isn't that complicated. It's at the Sesame Street level of responsibility and obligation. Big Bird could probably have handled this one just fine and still managed to sing an uplifting song about it.

Thompson loses appeal

Judging by the reader figures, Florida ex-attorney Jack Thompson is a popular topic among readers. Given a lifetime disbarment in September 2008 for 27 counts of professional miscondunct, Thompson appealed to the Supreme Court.

Now, these sorts of disbarment appeals happen from time to time. The appeal is first heard by a panel of judges who decide if the appeal will take place. Less than one in 25 are actually permitted so it represented some pretty long odds.

Well, it seems that Thompson doesn't get to be one of the special snowflakes this time around. I can only wonder what he's going to do next. I'm pretty sure he's not going to just let it slide. I can't imagine why you'd want to be a part of a professional association that doesn't want you as a member, though.

Maybe if they'd called it something else?

The operators of The Pirate Bay torrent site have been found guilty of assisting copyright infringement by a Swedish district court. A fine of 30 million kronor and a year in jail will likely be appealed, of course.

While the defendants didn't store or host any infringing material on the site and an alleged 80% of the material linked to wasn't infringing material ... still, if you call it "The Pirate Bay" that sort of makes any claims of innocence seem rather specious and far harder to defend.

The most interesting aspect of the verdict is that it appears to give industry groups leverage towards laying actions against other file-sharing hubs.

Ironically, the verdict was apparently leaked to the press before it was presented in court.

Jack spams Utah legislature?

Unhappy with the fate of his the bill he drafted, disbarred Florida attorney Jack Thompson apparently sent enough emails to the Utah senate president Waddoups that he was asked to stop, including an image of GTAIV's protagonist character getting a lap-dance, essentially calling it pornography.

Interestingly enough, the Utah legislature might agree with him in part, because when he sent that to the whole legislature, Waddoups decided to pass the matter on to the State Attorney General to see what action may be taken.

In a sense, Waddoups might be playing into Jacks hand (argh! Did anyone else just go to a scary visual place just then?) with this one. Is it offensive material, or is it not? Or is it just that it is inappropriately out-of-place?

See also:

Utah Senate President Wants to Prosecute Jack Thompson Under CAN-SPAM Act

http://www.sltrib.com/news/ci_12142617

Piracy is stealing. Not!

Just about every time I put a DVD in, or tune in to commercial television, I see a cautionary advert that says (either) "Piracy is theft" or "Piracy is stealing", or "Piracy is a crime". These relate to movies, music, software. You hear and see these messages a lot.

Now, it might seem unreasonably pedantic, but those statements are misleading. That is, taken literally, they are false.

Theft, and stealing are crimes (actually, they're not always crimes, but they usually are). Theft is... well:

1. A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
2. A person who steals is guilty of theft; and "thief" shall be construed accordingly.

Look closely: "with the intention of permanently depriving the other of it"

If someone takes your keys, they are stealing. If someone shoplifts a product from a shelf, they are stealing. If someone takes your car, they are stealing. Each of these deprives the owner of the thing that is stolen. Watch? Wallet? Shoes? Fanny-pack? Jewelry? Luggage? Stealing.

If someone rips your texture, photocopies your book, copies your files or plagiarizes your words, that is not stealing. You have not been deprived of your texture, data or words.

What it actually is, is an infringement of your civil rights. That's unlawful, and there's no question about it.

Technically though, it isn't actually a crime. It's a civil infringement and not a matter for criminal law (though there are some circumstances where it can be, but they're not really the sorts of circumstances you're likely to run into commonly).

Saying that Piracy is theft/stealing/a crime is what we call hype (exaggeration for effect). It's essentially a false statement. It's also an insulting one, to some degree, because it suggests that you don't know any better. You can say that someone's future profits are being 'stolen', but that's something they don't have yet, and that's a civil action as well, and not stealing as the law defines it.

I guess saying that "Piracy is a violation of the civil rights of others" lacks the sort of punch that gets it onto the front of tee-shirts. But we're not really talking about catchy tee-shirt slogans here.

Trivia note: Until relatively recently, in historical terms, the term piracy (in the intellectual property sense) wasn't applied to what consumers did. It was something that publishers did. A pirate was a publisher who used your work, music, or ideas and didn't compensate you fairly (or at all) for it.

Now I'm not saying that the violation of the civil rights of others is right. I'm just a bit fed up with being bombarded by false statements. Are you?