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Reader Comments (43)

Posted: Apr 21st 2009 11:30AM (Unverified) said

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I think the case will end up being settled out of court as you say, but I remember noting at the time that by taking over Xstreet, LL had automatically removed any safe harbour status that it might have had for anything sold on Xstreet. The DMCA explicitly says that the OSP must "not receive a financial benefit directly attributable to the infringing activity" in order to qualify, and they now do by commission.

Given that

(a) there is a vast amount of potentially infringing content out there;
(b) LL does not vet products before they appear on Xstreet at all;
(c) LL does not really vet them afterwards apparently;
(d) some people really will sue anybody for anything, despite the fact that so far they haven't very much, possibly because LL _could_ claim safe harbour status and suing residents isn't worth very much money;

I wondered back then what the plan was to deal with this sort of situation, and I still wonder. Of course, there _was_ a plan, I'm sure. Anything else would be inconceivable.

Posted: Apr 21st 2009 11:36AM (Unverified) said

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I've seen alot of mention of the DMCA in the context of this suit, but note that it's irrelevant. This suit is about trademark (and related things like trade dress infringement); the DMCA is about copyright. Taser isn't complaining that their content has been copied; they're complaining that their trademarked brand name has been used on someone else's content, in a way that damages the value of the brand etc etc. As far as I know, the DMCA has nothing to do with trademark protection.

Posted: Apr 21st 2009 11:44AM (Unverified) said

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DMCA notices are often used as a channel for delivering information about trademark violation as well. There's no reason not to respond to a mark holder's request about the misuse of their marks, and the DMCA almost always takes your notification to the right people anyway.
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Posted: Apr 21st 2009 11:39AM (Unverified) said

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As I wrote somewhere else that I can't find at the moment :) I'm surprised this actually came down to a lawsuit. I would have expected that Taser would have contacted the Lab and said "these people here are using your platform to violate our trademark, make them stop", and the Lab would have said "whoa look at that, we'll fix it". I'm wondering whether Taser went straight to a lawsuit for reasons of their own, or if they tried to get hold of the lab but failed to get past the call-director, or if the Lab is going to put forward some theory under which it's not their job. I'd be very interested in reading the latter.

Posted: Apr 21st 2009 11:43AM (Unverified) said

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The Lab is normally *astonishingly* rapid about trademark enforcement when contacted in my experience. I can't imagine why that did not happen here.
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Posted: Apr 21st 2009 12:34PM (Unverified) said

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"Trademarks and design patents, almost certainly have been violated, though the damages to Taser International Inc seem to verge on the insignificant, and the matter could have been cleared up quickly with a DMCA notice."

Except DMCA take-down notices address only copyright infringement. Linden might have responded to a take-down request, but the DMCA does not really control.

Also, if Linden is the actual seller (having acquired XStreet SL) then sending a take-down notice would not be appropriate because they are not an ISP. They are the content provider.

Posted: Apr 21st 2009 1:23PM (Unverified) said

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DMCA notices are commonly used for both infringers as well their hosts, and frequently for trademarks as well as copyrights (and even patents, in rare circumstances) -- not necessarily because they have the might and auspices of the DMCA behind them, but because (as an instrument) they neatly satisfy the "reasonable notification requirements" of a number of regulatory acts relating to IP infringement.

Most all of them have about the same notification standards, and the DMCA notice meets them all.
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Posted: Apr 21st 2009 5:13PM (Unverified) said

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Seems to me the only defense ANY of these people have is the argument that the "taser" work (not capitolized) has become a public domain word. Just as Microsoft can't trademark the word "Windows" (yes, they actually tried that) and how xerox - when referring to photocopying was (at least once that I recall) shot-down as a trademark infringement because of the way that word has come to be so prevailant in English language to describe photocopying.

All the references I saw regarding the word were lowercase. As in a 'description' of the simulated function.

But yes, oh yes are you ever correct about Linden Lab now being liable. Just the cost to defend is money they didn't need to spend right now.

Posted: Apr 21st 2009 6:27PM (Unverified) said

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"Wait... what? What's Linden Lab got to do with this case anyway? Shouldn't this be aimed at the content creators themselves?"

Clearly I need to read the ToS again, but I seem to recall something about the Lab owning in some form or having the right to modify/control the content we create.

Posted: Apr 21st 2009 7:19PM (Unverified) said

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This won't be the only matter brought before the court. LL has repeatedly demonstrated their understanding of IP issues and have gone out of their way to protect their trademark while also claiming to have rights to content stored on their servers. As overzealous as they were re. gambling, they completely dropped the ball with XStreet and now it is coming back to bite them.

I agree with an earlier poster that this has settlement written all over it but expect others to file before LL is forced to take greater control of what is sold through XStreet and what is listed for sale in-world. I thought pornography would come out of LL's Pandora's box when it opens but it looks like IP will win out.

Posted: Apr 21st 2009 8:49PM (Unverified) said

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there is actually a company called "taser"? that is like trying to call your company "telephone" 0.0

Posted: Apr 21st 2009 8:14PM (Unverified) said

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By moderating content, such as coming adult changes, LL can no longer claim DMCA safe harbor exception designed to limit liability of service providers.

DMCA safe harbor exception can only be claimed if the service provider does not edit/moderate the content, but merely responds to take down notices. Once editorial control is exercised the service provider becomes liable for copyright infringments.

Posted: Apr 21st 2009 8:49PM (Unverified) said

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"don't sue me bro!!" Xp

Posted: Apr 22nd 2009 1:17AM (Unverified) said

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I'm curious about how "patent infringement" comes into this. Taser International have every right to protect their trademark ("Taser(R)") but do they in fact hold a patent on the electronic stun gun? Even if they have, how can they show parallels between that and a virtual electronic stun gun that is (a) not electronic (b) not stunning and (c) not a real gun!

I think someone should be talking to the estate holders of Tom Swift novels and explaining how they could sue Taser International for stealing their plan for an electronic stun gun. Not only that, they used an acronym of the title of the novel to name their company!

I think reparations are in order - as are reprints of the original Tom Swift novel.

Posted: Apr 22nd 2009 1:50AM (Unverified) said

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Well, the patents in question are actually design patents and patent the shape and geometry of the devices (the appearance, basically), rather than the function. On that basis anything that mimics the appearance of one would be a candidate for infringement of the patents.

In Tom Swift news, the first 25 Tom Swift books (and a selection of other titles written under the same house pseudonym) are now in the public domain and available via Project Gutenberg: http://www.gutenberg.org/browse/authors/a#a267
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Posted: Apr 22nd 2009 9:21AM (Unverified) said

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LOL

Posted: Apr 22nd 2009 7:05AM (Unverified) said

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'unfair competition', 'all profits earned from sales'.. aha ha ha, lol. Give me a break...

Posted: Apr 22nd 2009 7:25AM (Unverified) said

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The 'unfair competition' part might be tricky for TII to demonstrate, since there seems no way that the products in SL can be said to be competing with TII's own. The other infringement items stand a much better chance, though. Usually in this sort of complaint, every conceivable thing is thrown at the wall, and through the hearing and discovery phases, everyone finds out what might actually stick.

Assuming some conservative figures, say, 50 infringing products and 40 sales of each product, if we factor in the Arizona statutory provision of $500 each - that's a cool million dollars right there. Starting to talk about some substantive sums.
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Posted: Apr 22nd 2009 2:00PM (Unverified) said

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*sighs*

When will LL learn to take their hands away from their product, Second Life? :) Actually, I really don't understand the reason why they keep insisting in meddling with it...

Ironically, a few OpenSim grid providers are taking the same stance as LL, promising to deal with content issues immediately and so on. They should be careful, specially if they operate out of the US, since it will be just a question of time until OpenSim will come under the attention of lawsuit-happy lawyer crowd...

Posted: Apr 22nd 2009 6:34PM (Unverified) said

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if I ever buy a real life electroshock device I'll try to make sure it ISN'T branded, or in any other way, from that company

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