The DMCA in the Metaverse

The DMCA in the Metaverse

imageI'll give Second Life one thing: They manage to create more interesting thought experiments than the Philosophy 101 class I dropped in college. Here's the latest, for those of you playing at home:

Anshe Chung (real name Ailin Graef), during an in-game interview with CNET, was attacked by someone who wrote a script that would launch giant flying penises across the stage (extremely not-work-safe montage here, for now). The incident, in in-game terms, isn't being discussed beyond normal anti-harassment protocol. However, Chung's real-life husband is emailing organizations (like YouTube and BoingBoing) that have been hosting videos of the incident, threatening them with prosecution under the DMCA for hosting a video with artwork belonging to Chung's corporation, Anshe Chung Studios. Just to make things more interesting, Chung/Graef is a German citizen.

And, for the question any good Philosophy prof. asks: What the hell, man?

Can the draconian rules of the DMCA really be applied for reproducing imagery that was first created in a game world? If so, do fair use rules apply? The interview was conducted in Second Life's version of a public space, and the people who recorded the penis incident were merely recording a public event. What's more, Chung/Graef's husband was contacting organizations that, whether we like it or not, function as a news source for numerous people, meaning Chung/Graef would be using the DMCA to censor the press.

According to Jason Schultz of the Electronic Frontier Foundation (EFF), the video in question is clearly protected by fair use. "The analogy I would draw is if there was a car accident in downtown New York, and the driver happened to be wearing an Armani suit, and there was a photographer who took photos and published them," he told CNET. "That photographer couldn't be sued by Armani. News is news. And fair use gives news reporters and others the right to report what they see and hear, even if it includes your copyrighted work." Meaning anything Chung had on display was ancillary to the event being reported, and the fact it was open to the public means the event is free to be publicized.

imageWell, that's a load off, especially for those folks who felt pressure to take down the video. But Chung's Dilemma is the first of many situations that will arise in the future, as the antiquated IP laws of the 20th century collide full-on with the global internet. As individuals who control content find themselves in an environment where control is a debatable subject, we're going to see more battles over personal IP as time goes on. Throw the user-created Web 2.0 phenomenon into the mix, and the litigious '90s are going to look like an amicable divorce proceeding, in comparison to what's coming.

Despite the fact Linden Labs and Second Life's residents enjoy calling out to the real world when it suits them - for instance, many players were overjoyed when Linden Labs announced they'd be attempting to involve the FBI in in-game incidents despite the fact most outspoken proponents of SL's "world" make great efforts to separate the two realities - we've lucked out in that it's not yet worked. The FBI can't investigate "crime" in a fake world. The types of precedent prosecuting in-game suicide bombings would set would turn gaming on its head. (Imagine getting prosecuted in real life for PKing someone in a game that allowed for non-consensual PvP.) However, IP law is a lot murkier, and the DMCA doesn't do much to clear the waters.

If anything, Chung's case just goes to show that without fair use and people like the EFF, copyright law can be used to stop the flow of information (even flying penises) we've all come to hold so near and dear. Chung was clearly being harassed, but committing an end run around the rights of the press to report on such harassment doesn't change what actually happened, and people have a right to know what goes on in public, even virtual public.

Copyright law and the DMCA shouldn't be able to protect Chung and other people who only want themselves painted in a positive light by the media. If she wants to control the message, maybe she should do what her real-world counterparts do: Lock the door.

Permalink

Joe:
The FBI can't investigate "crime" in a fake world.

Does anyone know if there's a specific precedent behind that? What's the reasoning behind this? I don't mean to dispute it - it's a good decision, because I agree with it - but the reason why it was made can make a lot of difference.

If games themselves are protected by the first amendment as freedom of expression, anything within them is expression, and therefore protected, too. At least, that's the ball I'd carry in terms of game-legal murder and such.

That, and a lot of laws stem from the protection of personal property. Nothing you own in an online game is technically yours, as those long EULAs are very happy to point out, so nothing can really be stolen.

But I'm no lawyer. I'm sure our Fearless Leader will have a more lawyerly answer for ya when he returns from Vegas.

To me, the whole thing is a Schroedinger's Cat hiding in a Skinner Box.

Joe:
To me, the whole thing is a Schroedinger's Cat hiding in a Skinner Box.

So, you... you don't know if it's alive, but if it is, it's pressing that little lever like there's no tomorrow.

In theory.
Hah!

Bongo Bill:

Joe:
The FBI can't investigate "crime" in a fake world.

Does anyone know if there's a specific precedent behind that? What's the reasoning behind this? I don't mean to dispute it - it's a good decision, because I agree with it - but the reason why it was made can make a lot of difference.

I am not sure these could be considered precedent, but the FBI can prosecute people for cyber crimes such as terrorism, child pornography, protected media sharing, hacking, etc. These are all different crimes, but they do reflect laws we have on the books for the real world. Thus, I think if someone launched an attack on a virtual world enterprise that caused loss of revenue and/or quantifiable damage, then they can be held accountable, just like if they vandalized a real world business, venture, or property. The fix is somewhat easier in the virtual world, so the penalty should not be as severe.

As for recording and distributing virtual events like this...I think it is clear they fall under fair use. Chung's blustering is misdirected anger and there is no legal precedent to stand on in this situation.

Well, you gotta bear in mind that "terrorism, child pornography, protected media sharing, hacking, etc." all have real-world victims and real-world loss involved. Moving pictures of child porn is illegal because children are being victimized; writing fiction about child porn is legal.

Additionally, you're talking mostly about stuff going on on the internet and offenses on intellectual property. For example, if you hack Google's servers and futz with their files, you're messing with their actual property.

In the case of someone killing another person in a game world (so long as that's legal in the framework of the game), it's a different matter - there's no real victim and there's no loss of property. Even if you get your stuff looted, the property really belongs to the developer in most cases, and since the stuff exists inside their world, it's still in their possession.

God help us all if/when the government decides you actually owned the sword your character just lost in a fight, though.

 

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