Tuesday, March 25, 2008

Linden Lab's New Brand Center

Just to keep myself on the safe side of the lawyers, any "conclusions" as to the law obtained by me below are not necessarily correct legal opinion or precedent, and should not be regarded as such. So don't rely on my word for it, folks. All I can claim is that, having seen some experience with these things over my time, I think I'm pretty close to how the real world works with these questions.

Yesterday, Linden Lab announced through the Big Blog the creation of its "Second Life Brand Center," which lays out strong, explicit rules and examples of how its various trademarks and service marks may be used. "Discussion" started quickly in the comments section to the announcement article; and, across 139 comments (as of this writing), the consensus has been strongly -- if not almost universally -- sarcastic, disparaging, and just plain negative. At least one commenter suggested that LL might be preparing for an initial public stock offering, and is trying to establish control of tangible and intangible assets, which trademarks certainly are to a company. (Witness the trademark inspectors who were running around restaurants during the Seventies and Eighties at the height of the Cola Wars, making sure that waitresses identified their product as their product.) Many were angry that, while LL is taking steps to protect their copyrighted material, the company seems unwilling to do anything to protect the same rights for Resident merchants.

In reality, this kind of lawyerly comedown is not that new. Any subscriber to, say, Writer's Digest will see batches of ads several times a year imploring authors to refer only to Kleenex™ facial tissues or Frigidaire™ refrigerators, etc. This is to protect their brand name and market position, since excessive use in a generic way forces the name into the public domain. That's why we have Velcro, and then we have everyone else making "hook-and-eye fastener strips."

The trick here is that many of these new rules put out by Linden Lab appear aimed mainly at businesses, both in world and out, seeking to associate themselves with Second Life. This is to keep customers from believing that the Lindens have endorsed, support, or otherwise have any connection with the third-party service/product. There is some legitimacy to this position, and such a stroke by Linden Lab helps to keep them out of the court if the third party gets hauled into it. A portion of the tempest over the rule changes is, therefor, in a teapot, and won't affect the average Resident normally.

Other parts, however, could. Or, at least, they could affect the average blog writer. If you're now supposed to put a ™ or similar after at least one early example of Second Life, Linden Lab, SL, Linden dollars, etc. ad inf. ad naus., are you going to when you're not getting paid to write a piece in the first place? Or are you going to shut down your efforts instead, because the ease and simplicity have been taken from an enterprise that makes you no money, and was embarked on as an extension of the fun you were supposedly having in world? Most of us aren't lawyers, and we can't usually afford to hire a trademark attorney to advise us in such areas. (I'd be willing to guess what the lawyer's advice would work out as, anyway.)

I think the answer for most bloggers lies in the volume of us out there, and the nature of our writing -- primarily hobbyist. Just as Coke and Pepsi have never been able to keep the public at large from referring to their products interchangeably, or as simply "soda," "pop," and so on, Linden Lab is not going to be try to enforce this on every single blogger in the SLogosphere. The attempt would be impractical at best. Of course, if a comply or cease-and-desist communication was received by the blogger, that casts a new aspect on the matter. At that point, the choices become sharp and clear. But will LL go to this trouble, and also generate this much ill will for their main product, which is already somewhat beleaguered with slowing growth and many technical issues?

My own approach will be as I've laid out above -- I will wait and see, and continue to write the various terms as I have to date. If I get word from a San Francisco lawyer, then we will see what my choices are at the time. If LL is wise, though, they will take a Paramount-Star Trek approach to fannish use of their trademarks. Paramount has existed quite comfortably with the fan community using their shows' names, their characters, their devices, and every other aspect of their product for over 40 years now, and has almost never freaked or been sorry over the matter. Linden Lab can learn from this example.


Another aspect of this question comes forward now: LL's insistence on its copyrights, while dragging its heels at best on the cries of their creation's artists for assistance in their own attempts to enforce intellectual property rights. In this, LL's timing has been nothing short of phenomenally poor. The people who are responsible for creating most of the world are getting the impression that they are on their own; that Governor Linden is more worried about protecting its own interests than theirs, and that they can basically go whistle for a wind. And this after one of the largest JIRA votes in the Grid's history for Linden Lab to solve the problem and enforce DMCA rights, months before the Brand Center announcement. This accounts for some of the outcry against the Brand Center rules -- and it is justified.

While the merchants -- the content creators -- are able to take some measures to prevent or slow theft of their product, the Lindens could also help greatly in this area. The key thing here, of course, is proof of the creators' contentions. Can they establish the legitimacy of any claim against a seller? If they can, then LL is under a legal obligation to stop the thief's profiting from that intellectual property. Indeed, at least to this legal novice, failure to help enforce their rights could lay LL open to civil charges of negligence -- or even complicity, if a clever lawyer got hold of the case.

In this area, the Lindens need to get their house in order vis-a-vis their customer relations before getting over-worried about enforcing their own property rights. If the content creators leave the Linden Grid in a huff for other metaverses, Linden Lab won't have to worry about it --because they won't have a Grid to market.

Cross-posted from Around the Grid with Harper.

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