Copyright and Fair Use for SL Content Creators

Fair Use 2014

We did this last year and it was really successful, so Tim and I are doing it again this year. Are you interested in learning more about what we mean when we talk about “fair use”? Would you like to hear some actual lawyers talk about what it really means, what the current state of the law is, and how it applies to content creation and use in SL?

Of course you would.

Come to the Justitia Legal Resource Village at 10 am on Saturday morning SLT and be prepared to talk copyright and fair use with me and Tim Faith. Have questions? Bring ‘em!

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Somebody watching me

The thrill of watching somebody

They’re watching us. Anyone with any sense has known that for years, but last month we got evidence: THEY are watching us, peering in on Second Life, spying on our porn and our petty jealousies and our mad fashion exploits. They’re creeping down our virtual alleyways, peering in our windows, trading files full of our fantasies.

But I can promise you they don’t look as good as I do while they’re doing it.

The hot unloving spotlight, secrets it arouses

Skin: Glam Affair — Vaki by Aida Ewing
Hair: CheerNo — Enzo by CheerNo Destiny (TDR Fusion)
Shirt & Tie: Tres Blah — Long Sleeve Collared Blouse by Juliette Westerberg (C88)
Trousers: Baiastice — Emy high-waist trousers by Baiastice
Shoes: Ju — 91 Boots by Ju Weisnicht
Briefcase: oyasumi — briefcase by Kenzo Gateaux (TMD)
Hands: Slink by Siddean Munro
Poses: Morphine by Pedrinho Naire; Del May by Del May

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Trademark Law Basics

(Obnoxious but necessary caveats: I’m simplifying this a lot, which means I’m leaving a lot out…and it’s still insanely long. If you’re a trademark lawyer, sorry: I know I’ve left out some important bits. Also: this is intended to be a general overview, not legal advice.)

Let’s sit down a moment and try to get a grasp on why trademark law works the way it works. So many of us are familiar with good old copyright law, which seems so easy and straightforward (protip: it isn’t, but it’s good at pretending). On first approach, we expect trademark law to be the same: basically just copyright law with a business suit on.

It isn’t. Trademark law has a completely different goal and intent. Let me lay out the basics in a handy comparison chart, and then I’ll get to the hard stuff.

TM table

Readers Digest Version: Trademark law isn’t like copyright law. Copyright law protects the creator / owner. Trademark law protects the consumer / buyer. When trying to decide if something infringes or not, copyright asks, “Oh, is it similar to John Doe’s work?”. Trademark asks, “Would consumers think that this product comes from that source?”.

Okay, so that’s the easy part. Now we have to look at the really difficult part – the stuff that always throws people about trademarks.

When you create a work of authorship, like a painting, that work is covered. Full stop. It doesn’t matter what state you live in. It doesn’t matter whether you’re using that painting for your awesome lolcat website or for your grandmother’s birthday present. It’s covered.

When you create a brand name, a logo, a symbol, or any other mark, it matters how and where you choose to use that mark. If I create the “WhoaToes” brand of fuzzy socks and I am the first person to sell fuzzy socks under the name “WhoaToes,” I will immediately have a trademark for “WhoaToes” in my geographical area. I can register “WhoaToes” with the Trademark Office, and then I will have the right to use the mark nationwide. So that’s the where part.

The how part is more confusing. When I register my trademark, I have to indicate what kind of goods I intend to protect. I’m selling fuzzy socks. This means that when I register my trademark, I can register “WhoaToes” in clothing, and I can keep people from using that mark for clothing. So I could stop someone from making some awesome “WhoaToes” sweaters. However, if I’ve only claimed my mark in the clothing class of goods, I can’t stop someone from making “WhoaToes” potatoes or “WhoaToes” toys. I also can’t prevent non-commercial uses…

Except (you had to know there would be an except). I can prevent certain uses that harm the distinctiveness or the reputation of my brand. If my brand is famous, I get some extra protections on it: once practically everybody knows what WhoaToes is, I can stop people from making products in different classes. Basically, I can stop other people from cashing in on my famous mark, because if I don’t, then consumers won’t be able to tell what goods are really endorsed by WhoaToes and what goods are just some random person trying to ride my fuzzy WhoaToes coattails. After a while, consumers might just stop trusting the WhoaToes name, and that would be bad.

Things get super, super-confusing when you add a virtual world into the mix. In SL, when people purchase fuzzy socks, they are not actually clothing. No one would reasonably be confused that virtual fuzzy socks are actually going to warm your feet. However, many real life companies have come into SL and established presences there, creating and selling branded items. So if someone sold WhoaToes fuzzy socks in SL without my permission, would that infringe my trademark? The law is still unsettled, and pretty confusing. There have been cases of real-world companies suing video game creators for trademark infringement: a strip club sued Rockstar Games for reproducing its club and logo in Grand Theft Auto: San Andreas; Marvel sued City of Heroes for allowing players to reproduce trademarked comic book heroes; and even TASER sued Second Life for permitting the sale of trademarked TASER guns. There is also licensing: back in 2008, to stop infringement, Herman Miller hired a production company to create authorized Aeron chairs in Second Life, which it both sold and offered as trade to people who destroyed their infringing knock-offs. But ultimately, it remains unsettled as to whether or not the knock-offs were actually infringing as a matter of law.

Is it a risk worth taking? As risks go, this one isn’t my favorite. There are certainly better approaches to business than trading in on someone else’s famous brand. You’re in violation of the Terms of Service, which means you’re on shaky ground with LL. And if you want to fight for the cause of virtual exceptionalism just for the sake of the precedent, more power to you…but it’s going to be an expensive fight. Also, trust me, nobody wants virtual WhoaToes knockoffs.

(The chart above is CC0 public domain, to the extent of applicable law. Have at. I’d love a link back if you feel like it, but I don’t require it.)

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Second Life Terms of Service: A legal panel


MORE EDITS: Video is up! And we have a pdf of my slides: SL ToS Presentation. Enjoy! Also, Inara Pey worked her ass off to create some excellent transcripts of the event, and the UCCSL is working on translating those into a few languages when possible.

Please join me (as my alt, Agenda Faromet), Tim Faith, and VIPO’s Juris Amat — all of us IP attorneys in real life — as we discuss the latest changes to Second Life’s Terms of Service. We’ll take a close, detailed look at exactly what the controversial section of the new ToS means, how it affects content creators (and regular users), what changed from the old terms, and why people are so upset. More importantly, we’ll answer your questions and discuss how the Terms of Service affects your rights now and in the future.

This event will be Saturday, October 19 at 10 am SLT at the UCCSL’s Rose Theatre Opera House. This is a new location that can support more avatars. We changed locations due to the high demand for this event. A few people have offered to record the event for us (but if you’re willing / able to record, please do!), and we hope we will also be able to reprise the panel on a second date if the demand is high enough.

Note: if we do get a good recording, we would really like to get a transcript for the hearing impaired. If you are willing to transcribe a recording for us, please contact Agenda Faromet after the panel is over. Thank you!

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Electric ladies will you sleep…or will you preach?

Martin Luther King Jr

Today is the 50th anniversary of Dr. King’s famous March on Washington. Today, 50 years after Dr. King spoke on the steps of the Lincoln Memorial, Barack Obama spoke on the steps of the Lincoln Memorial. That’s pretty cool.

We have not fulfilled the dream of Dr. King, but we’re a lot closer than we were in those days. But we still have work to do. Today we remember the great work that Dr. King did to put us on this path, and we respect that work by trying very hard to stay on that path: we have to restore the voting rights struck down this summer; we’re taking steps toward remedying the inequalities in incarceration in this country; we need to work on inequalities in unemployment rates and violence. We have work to do. We need to remember, today, that King’s speech was not just about his dream. It was about the problems that needed to be remedied. We remember, today, that 50 years ago he warned us: “We cannot be satisfied as long as a Negro in Mississippi cannot vote, and a Negro in New York believes he has nothing for which to vote.” We are not satisfied. The dream is not done. We have work to do.

But I also want to say that today we don’t just remember Dr. King’s great march and speech. Today we also need to remember the reason that the march was held on August 28 in the first place: we need to remember Emmett Till. Emmett Till was a 14-year-old child who committed the horrific crime of speaking to a white woman in Mississippi in 1955…because, of course, a black male speaking to a white woman must have nefarious motives. For that transgression, he was pulled out of his home in the middle of the night, tortured, and murdered by two white men who were acquitted of the killing.

Today is 50 years after Dr. King’s speech, but it’s nearly 60 years after Emmett Till was lynched, and last year we’ve just seen another child killed for no reason at all, because his killer assumed that a black male out after dark must have nefarious motives. Again, this summer the killer was acquitted of murder. We’ve grown as a culture, but as individuals, we’re still making the same racist assumptions, and as a legal system, we still have flaws. Today is a celebration, but it is also an admonition. Because we have work to do.

August 28, 2013

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Grown Up

Grown Up

I learned the coolest new trick today.

We keep hearing about materials in mesh, and awesome new mesh clothes and furniture and other items being “materials ready.” Well, that’s awesome. But guess what. Materials can go on regular prims, too. Which means that if, like me, you’re not a mesh creator, but you do like to create other things in-world, you can still create materials-ready stuff. And they can look like that background above. Check it out.

BIG CAVEAT: you have to have advanced lighting and shadows enabled for all the following to work.

Build a prim. You know how to do this already. Now, edit it, and open up the Texture tab. You’ll see that it looks pretty different from the way it has looked for years and years. Notably, you’ll see a “Materials” option (it’s already set) and next to it, it says “Texture (diffuse).” Change that to “Shininess.”


Nothing happens, but you see off to the side there’s a texture box. You can either drop a texture in that or set it to blank (I can’t see a difference between the two options) (Edit: see below!). For now, set it to blank and start playing with the options it gives you.


You’ll see I added a color here, but nothing happens. That gets interesting later. I promise. Now, go back up and change “Shininess” to “Bumpiness.” This is the same old stock LL bumpiness map, with one interesting change:


…you can add a texture. Adding a texture here does really cool things, as you can see. Play around with it, add textures. Have fun. Afterwards, add the same texture to the normal texture input, and you’re done.


Remember when I added that color to the Shininess menu, and nothing happened? Check out what happens when I shine a light prim on it:


Yeah. This is so cool.

Have fun, guys!

Edit: There is a difference between dropping a texture into the texture box on the “Shininess” tab and setting it to blank. The texture is what is reflected when a light (either the sun or a spotlight prim) shines onto your new object. Now, when I say “reflected,” it’s not properly reflected as in cast the way a mirror would, but it’s still pretty cool. I can’t give you a real feel for how it looks in a static picture, but here: this prim has no texture on it except under the Shininess tab.


Neat, huh? Now. Go play with it. Do it.

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A part of me will never be free

and the part that's free will never be me

Ah, the limitations of WordPress. Sometimes the smaller size just doesn’t do justice to a picture I’ve worked on for ages. Yeah, but you know the size limitations. Keep those in mind when doing a picture, dummy. I know. Shut up.

Okay, first things first: I’ve totally not blogged all the same things everybody else has blogged, and that’s terrible. I didn’t do Hair Fair, and Hair Fair was mostly awesome. There were even a handful of short hairs, which is pretty unusual. However, I’ll say this: Please, people, when making men’s hair? Please, for the love of god, remember that male AVs aren’t the only people who wear them. Give me a resize, ffs. It’s short hair. It can be mod.

I also haven’t been able to blog Love Donna Flora, mostly because let’s be honest, the stuff out for LDF is very feminine, because Squinternet’s style is generally hyperfeminine (and I am not). Go anyway, guys. I’ve taken two of my alts and three friends. It’s a good cause: Squinternet Larnia, the creative genius behind Donna Flora and an unfailingly generous and active member of the SL community, has cancer, and needs just a little help. The event just started, and ends August 11. GO.

There. That said, I want to talk about ISON for a second, because I am really remiss for having not featured it enough before.

Recently, I made the observation that there were few stores that I shop from all the time. ISON is an exception to this, and really is one of my favorite stores in SL. Harry Hyx just constantly gets better and better, with beautiful, classic wardrobe staples rendered in gorgeous, realistic textures that suggest expensive materials in well-tailored cuts. He manages to hit nearly every style: between myself and my alt, I think I own most of the things he’s put out, and I can’t think of another store in SL i can say the same about.

I imagine the only reason it doesn’t feature more in my blog is because I wear ISON so much every day that it doesn’t become dress-up clothes. Mental note: fix that.

My lovely companion is in a lot of Teefy. Azure Electricteeth makes such beautiful, soft, girly, romantic pieces — I don’t wear them, but I do love to look at them. And now you get to look at them, too. Everybody wins!

On Vaki:
Skin: Glam Affair — Vaki by Aida Ewing
Hair: Dura — 42 by Chiaki Xue
Shirt: mon tissu — Slouchy Sweatshirt by Anouk Spot
Trousers: Overhigh — Suede Pants by Crashov Uladstron (Available at The Dressing Room)
Shoes: ISON — leather strap sandals by Harry Hyx (Available at C88)
Glasses: ISON – quinton glasses by Harry Hyx
Bracelet: ISON – aviary claw bracelet by Harry Hyx
Necklace: etham – Metal Cross by
Hands and Feet: Slink by Siddean Munro

On my lovely companion (I’m not sure of specifics, but I’m pretty close, I think):
Skin: League by Nena Janus
Hair: elikatira by Elikapeka Tiramisu
Vest and Skirt: Teefy by Azure Electricteeth
Boots: ISON by Harry Hyx
Glasses: Mr.Poet by Hiwinyu Fazuku

Pose: oOo Studio by Olaenka Chesnokov
Taken at Annwn Willows

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Restore the Fourth!

Restore the Fourth

Yesterday, I took part in San Francisco’s Restore the Fourth rally to bring attention to the erosion of our constitutionally protected right to remain safe from warrantless search of our stuff. Around three or four hundred people met near City Hall, walked to the Federal Building where our senators’ office buildings are, and then marched, chanting and clapping, down Market Street to the Embarcadero to listen to speeches and talks. Finally, the rally ended outside the building where, in 2003, the NSA installed an interception facility inside AT&T’s backbone network, and three years later, the world finally had its first (but not, by any means, its last) proof of the NSA’s overreach. Yesterday, all over the nation, thousands of people stood up and told our government it was time to pry the NSA’s fingers off our things.

In Second Life, Aranel Ah at Boom also feels strongly about the Restore the Fourth movement. She has made these awesome shirts and put them out for free. Go get one! You may not have been able to march yesterday — or maybe you did, in which case, awesome, and thanks for coming out! — but you can still support the cause.

Also, it’s not too late to get involved out in the Real World. Go to the Restore the Fourth website and check near you: there may be an upcoming rally. I know Seattle’s isn’t until tomorrow (July 6th), so you still have time to stick some words on some cardboard and think up a really awesome chant. Have fun, kids!

Shirt: BOOM — Restore the Fourth by Aranel Ah
Some other stuff.
Poses by oOo Studio (and I’m not sure what Jacq’s pose is).

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Liberty and Justice FOR ALL.

Liberty and Justice For All

Today, the Supreme Court came down with its rulings in United States v. Windsor and Hollingsworth v. Perry, better known as the marriage cases: DOMA and Prop 8. As everyone already knows by now, the Court invalidated § 3 of DOMA as unconstitutional, and remanded Perry on standing grounds. Everyone already knows this. It’s been all over the news all day.

Let’s talk about what really happened.

First, let’s talk about DOMA. Justice Kennedy wrote the opinion for Windsor. I’ve talked about how important that is before: Kennedy wrote Romer v. Evans and Lawrence v. Texas. He’s been the most consistent guardian of gay rights on the Supreme Court, and he really went to bat for us today. In Windsor, the only § 3 of DOMA was before the Court. § 3 is the one that required the federal government to limit marriage to heterosexual couples, and denied the privileges of marriage to legally married homosexual couples (§ 2 is the one that allows states to decide whether or not to acknowledge a couple’s legal marriage in another state). A court can only consider the question it is presented with, and as I said, the Supreme Court was only presented with the question of § 3′s constitutionality. That didn’t stop Justice Kennedy: Kennedy eviscerated DOMA. He tore apart the entire statute from its inception, describing the nasty, hateful purpose Congress had in enacting DOMA and the many harmful effects it has had.

What does this mean? Right now, only § 3 is affected. But Kennedy opened the door very wide for legal challenges to § 2. State sovereignty is really the only quasi-legitimate obstacle…and since that’s not a legitimate reason for ignoring anyone else’s marriage, I doubt that’ll last long. Watch this space.

Now, let’s talk about Prop 8. I know a lot of my friends were initially upset that Perry was kicked on standing grounds, because the press had built it up as if there was some way Perry could require that all states permit same sex marriage. That was never going to happen. Remember what I said about how a court can only consider the question it’s presented with? That wasn’t the question in Perry. So let’s remember: we didn’t take Perry to the Supreme Court. The Prop 8 supporters did. We won at the Ninth Circuit, right? The Prop 8 supporters were asking the Supreme Court to bring back Prop 8. The Court told them to sitchoassdown. They weren’t permitted to even ask, and in fact, they shouldn’t have even been permitted to sue to the Ninth Circuit. They should have sat down a long time ago. This was a slam dunk for us.

When do people start getting married? Kamala Harris, California’s Attorney General, has already asked the Ninth Circuit to lift its stay immediately, so California can resume marriages. Governor Brown has already ordered all counties in California to issue marriage certificates to all couples who want one as soon as the stay is lifted. It could take as long as 25 days…but it might happen before that.

Where are we going from here? DOMA is mostly dead. Prop 8 is dead. There is still work to be done. We lost the core of the Voting Rights Act yesterday, and we need to fight to rebuild that; that’s a priority. Our civil rights are everyone’s civil rights. The NSA is running out of control, and we need to work on ways to rein it in. And state by state, women’s rights are being eroded. If you weren’t watching when the Texas Senate tried to pass SB5 illegally by forcing a vote past midnight and changing the timestamps on its own Senate website, go read what’s happening in the world. We’re not done. Our civil rights are everyone’s civil rights.

Justice for ALL means we don’t get to stop fighting once we get justice for some. Let’s get to work.


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In the land of the blind

In the land of the blind

First off: this post is meaningless without video, because I recognize that not everybody grew up in the 80s. Go enjoy some of the decade’s finest.

I read on Ziki Questi’s blog that someone has finally built Jordan’s beautiful Petra in-world. And that, of course, meant that I had to get my Eldritch on, strut around while a ghost-faced goddess glares from a temple doorway, and rock a white linen suit like a Eurotrash degenerate on holiday.

You guys, that is easier said than done in SL.

Finding a white suit is a hellish chore. Now, the last time I blogged, I mentioned The Secret Store’s beautlfully-crafted blazer. I am still completely in love with it…but it doesn’t come in white. #sadtrombone But Hucci makes two really exceptional blazers, one open and one closed. This works very nicely.

I still have yet to find trousers that fit me as well as the Elate trousers. I should have fatpacked them when they were at C88 way back when, because I get a lot of use out of them. They hang correctly on my hips, and don’t give me the really huge booty that certain other brands give me…and the texture just looks so good.

Under the jacket, my shirt is from mon tissu. Truth: it doesn’t actually fit under the jacket — I had to photoshop some bits out in the sleeves — but it looks good, and it’s such a beautiful shirt.

As a side note: I did not actually blog these shoes when they came out, and I should have. Sorry: I’ve been super-busy. Get up, get out, and go get these shoes right now. Mr.Poet has made mesh wingtips that are beyond perfection. The textures are lush, gorgeous, realistic. They come with a HUD that allow you to recolor everything from the sole to the aglets (you know. The ends of the laces). They’re designed for men, but resize perfectly for women. And they’re L$290. Seriously. Why are you still reading my blog? Go buy some shoes.

Some say prayers

On not-quite-Uncle Andy:
Skin: Glam Affair — Vaki by Aida Ewing
Hair: Dura — 44 by Chiaki Xue
Jacket: Hucci — Kalare Blazer by Eboni Khan
Shirt: mon tissu — Collared Shirt by Anouk Spot
Trousers: Elate! — Elle Jeans by Kellie Iwish
Shoes: Mr.Poet — Full Brogue Derby Shoes by Hiwinyu Fazuku
Belt: fri. — Lucid Belt by Jolie Monday
Tie: Entente — Les Affaires Tie by Entente
Sunglasses: Kumaki Glasses Style — Strike 1.03 by Koguma Kumaki
Cane: DECO — Duckhead Cane by Gutterblood Spoonhammer
Hands: Slink by Siddean Munro

On seriously-not-Auntie-Patricia:
Skin: Glam Affair: Margot by Aida Ewing
Hair: LeLutka: Jolie by Thora Charron
Jacket: Elate! — Piper Blazer by Kellie Iwish
Skirt: ISON — Slit Pencil Skirt by Harry Hyx
Shoes: Ingenue — Gatsby Heels by Betty Doyle
Neck corset: Perception — Neck corset by Maggiedoll Alter

Poses: Del May by Del May; Olive Juice by Isabellagrace Baroque; oOo Studio by Olaenka Chesnokov

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