Transcript of Benjamin Duranske's Connecting the Dots on Legal Issues and The Grid

I originally presented this at Metanomics, Aug. 4, 2008 as "Connecting the Dots" after the show featuring IBM’s Zha Ewry and Linden Lab’s Zero Linden.

The biggest legal impact of “the grid” is that local laws will govern. Want to run a casino? Drop a server in Antigua. But that’s the easy part. As [IBM’s] Zha [Ewry] and [Linden Lab’s] Zero [Linden] noted, content export is hard, technically. It’s also hard legally. And make no mistake, content export is coming, even though it’s not in the beta. The marketplace will demand it.

So what happens to my suit, hair, and skin, all of which were designed by talented residents, when I take my avatar to the Antigua world to play some blackjack? And what if the guy who runs the casino there programs his server to let me make unauthorized copies of that stuff?

That’s not a new question. I dug up an old audio recording from Second Life’s first birthday where then-CEO Philip Rosedale discusses interoperability and export content from Second Life to other locations on the 3D internet. Philip says:

I don’t think that we fundamentally object to people being able to take their content with them. I believe that the content people create, even if there are many digital worlds out there for you to be in, the content you create should be your own property. In the end, the more open systems will win.

Philip was actually responding to a resident's concern that Linden Lab might not allow content exporting to other worlds for business reasons. Today, residents are far more concerned that Linden Lab will allow exporting – perhaps to grids without the same technological solutions in place to protect content.

And that brings us to the heart of the question. What is the legal status of Linden Lab’s permission system, and what obligations does Linden Lab have to prevent transfer of Second Life virtual property to other grids without similar permission systems?

While I’m in Second Life, unless I’m using an exploit to cheat the permissions system, the suit I am wearing cannot be copied (so I only get one) it cannot be modified (so I can’t make the tie a different color) and it can’t be transferred to another user – because the designer set it up that way.

But that’s just a technological limit, and like it or not, copyright law – with one big exception that I’ll talk about in a minute – isn’t all that interested in technological limits. Look at something distinctly analog for an example – the script to a hot movie that’s in production. Scripts are often printed in colored ink on colored paper so they won’t photocopy, but that’s not what really protects the intellectual property. That just makes it harder to infringe. The copying is the issue, not how it happens. What actually protects the intellectual property is the legal framework of copyright law, and the lengthy nondisclosure agreements under which the script is given to actors and crew.

Similarly, what protects your intellectual property in Second Life isn’t really the copy-mod-transfer system, that’s just ink and paper that won’t photocopy. What protects your intellectual property in Second Life – and anywhere else on the grid – is the legal framework of the copyright system, and any agreement you reach with your customers.

That probably sounds a little scary, because copyright suits can be pretty expensive and some infringement won’t be worth pursuing, but realistically, that’s true on the 2D internet too. The posts I write at Virtually Blind sometimes get copied and posted on amalgamation sites, some of which are hosted overseas. It’s annoying but it’s not worth my time to pursue it. On the 3D internet, you’ll have to pick your battles too.

There are legal arguments that Linden Lab has an obligation to prohibit unauthorized transfer though. First is “estoppel.” For a half-decade, Linden Lab has encouraged users to create this amazing, rich content around us. It’s this content that makes Second Life profitable, and not a fraction of it would have been created without copy-mod-transfer. One could reasonably argue that Linden Lab should be “estopped” (that’s the one legal term today) from allowing content created under this system to leave Second Life. The other argument is one I alluded to earlier. Under the Digital Millennium Copyright Act, circumvention of technological measures to prevent copying is prohibited. Arguably, Linden Lab cannot “circumvent” the copy-mod-transfer system creators rely on by hooking up that content to grids without such a system. After all, remember, your rights under the DMCA are yours in Second Life, not Linden Lab’s.

I don’t think it will come to that though. Linden Lab says, and I’m quoting, that it “will not design a system that lets people openly violate the permissions of SL goods and take them to other worlds.” Take a step back and parse that carefully. Linden lab promises that its system will not let people “openly violate the permissions” of Second Life goods.

As Robert said, we’re connecting the dots, so let’s complete the picture. Linden Lab has left room in that statement for the creation of a new permission – let’s call it “transport” – which could be set by designers to allow transfer of property to non-Linden Lab hosted grids. Realistically? A lot of content creators are going to want to allow transport. The marketplace is going to demand transportability of inventory items (after all, I know I’d rather not show up in Antigua naked – I’d even pay extra for that option) and designers will, I suspect, want to offer products that work across grid lines.

The bottom line? There’s a good ethical argument that Linden Lab shouldn’t let stuff that was built in Second Life get transported to other grids without the designer’s permission, and there’s even a legal argument there as well, but both are probably unnecessary.

Just like every other form of intellectual property, there will undoubtedly be some infringement – there already is in Second Life itself. And just like other forms of infringement, the legal system will deal with the worst of it, and the marketplace will sort out the rest.