Comments on: Trademarking and educators: Linden Lab responds

By: Gwyneth Llewelyn

Gwyneth Llewelyn — Thu, 08 Oct 2009 11:08:47 +0000

This is a typical case of what is “morally right” and what is “legally right”. Of course that Linden Lab is legally right to protect their trademarks and copyrights, and enforce that protection legally, with or without recourse to the courts. That goes without saying. Nobody wants that the name “Second Life”, because of Linden Lab's failure to enforce it somewhere, is grabbed by a group of tough lawyers (way tougher than LL!) and force us all (including LL!) to cease and desist using the name “Second Life” and swamp every resident under lawsuits without end. While this is hardly likely to happen — Linden Lab would fight first! — it's a dreadful scenario. To prevent it, Linden Lab has to routinely make takedown notices of the misuse of the name “Second Life”, to be able to provide proof to any court that they are, indeed, protecting their own trademarks, as they're required to do to keep their claims over them.

Then there is the “morally right” issue of the story.

This wiki for educators in particular is not something being “subversively” done without LL's knowledge or consent. Pathfinder himself helped to promote it! The issues of fair use, or simple mention of the trademark, are complex and almost always only possible to sort out in a court, but imagine that I write a blog post saying: “20 ways to improve your Windows experience” which becomes popular enough to catch the attention of Microsoft's lawyers. Should I fear a lawsuit after a takedown notice? Of course not — I'm actually helping to promote Microsoft's product and giving similar users tips so that they can be more happy while using their products. No infringement was intended, rather the contrary, only a promotional effort was being made, for free and without any labour costs on Microsoft's part. (Granted, if I were selling that article, things might be slightly different — even so, billions of books with the “Windows” trademark on the title exist, and Microsoft is not suing them, so long as the book mentions that Windows is a trademark of Microsoft).

This is a very similar example. The “Second Life in Education” wiki clearly states at the bottom left of the sidebar: “Notice and Disclaimer: Second Life is a trademark of Linden Research, Inc. The SLeducation Wiki and the Islands of jokaydia are not affiliated with or sponsored by Linden Research.” Furthermore, it exhibits the inSL logo, which, at some point in time, required one to send an email to LL to inform them on its use (this basically meant that at the very least LL would know where the inSL logo was being used, and it would be part of a small database of “fan sites” or similar sites which are SL-related). Pathfinder, as well as many other Lindens, were fully aware of the wiki, and what purpose it served — since they promoted it publicly! The site hasn't a single design element that relates either to LL's or SL's corporate image. It explains what Second Life is, and how it is used in education, and clearly states the purposes and goals of the wiki (presenting use cases of SL in education). One of the first entries clearly states: “PLEASE NOTE: As this is my professional wiki and I need to retain editing rights I do not accept membership for this space.” — so it's not “a Linden Lab wiki”, or a space full of hackers and trademark violators to “grab” LL's trademark in some way and gather profit/visibility from it.

So what Linden Lab should have done, as Pathfinder sort of claims in a half-apologetic note, is to get in touch with Jokay fist. They could have said, “our lawyers are worried about the way you associate your wiki with our 'Second Life' trademark and we wish you to make a few changes”. Together, they would have figured out a way to make it even more sure that it doesn't violate any of LL's trademarks. They would probably exchange a few emails where, at the end, Linden Lab would allow Jokay to keep the wiki, so long as some appropriate messages are inserted into it or trademark information is explained. Perhaps the opening page would have to have more disclaimers, I don't know.

And I'm sure this has all been figured out in the mean while

No, the real problem with a popular site like that is… links. Google lists at least some 500 links to this wiki. If it changes the URL, it means all that content gets lost from search engines. If the name is changed, it's not certain that Wikispaces, who host the wiki, can somehow redirect the old name to the new one (they might be able to do that, I have no idea). This would mean that all those presentations out there and even LL-promoted links would simply point to… nowhere. Which would be a tremendous loss to the educational and research communities.

So I definitely hope that LL's lawyers, with the helpful hand of Pathfinder, figure out a reasonably — and sane — solution to the problem. Hopefully all it takes is to add a few notices on the wiki to make LL's lawyers happy, so that they can send Jokay an email saying “under these circumstances, as spelled on this email, we're fine with your reference to LL's trademark 'Second Life' and will allow your wiki to stay up”. That would definitely continue to uphold LL's claim upon their trademark — if Jokay refuses to comply, LL would still be able to force a takedown — but keep the important information on the wiki available, and all links to it still working.

Let common sense sort it out.

By: Gwyneth Llewelyn

Gwyneth Llewelyn — Wed, 07 Oct 2009 20:08:47 +0000

Then there is the “morally right” issue of the story.

So what Linden Lab should have done, as Pathfinder sort of claims in a half-apologetic note, is to get in touch with Jokay fist. They could have said, “our lawyers are worried about the way you associate our trademark with 'Second Life' and we wish you to make a few changes”. Together, they would have figured out a way to make it even more sure that it doesn't violate any of LL's trademarks. They would probably exchange a few emails where, at the end, Linden Lab would allow Jokay to keep the wiki, so long as some appropriate messages are inserted into it or trademark information is explained. Perhaps the opening page would have to have more disclaimers, I don't know.

And I'm sure this has all been figured out in the mean while

Let common sense sort it out.

By: RPG Transfer » Massively: Linden Lab explanation alienates educators

RPG Transfer » Massively: Linden Lab explanation alienates educators — Sat, 03 Oct 2009 22:01:18 +0000

[...] The Linden Lab response to those questions yesterday seems to have generated a reaction among educators akin to pouring gasoline on a blaze, coupled with a vigorous fish-slapping. While there’s a undeniably a spectrum of reaction to the Lab’s response, most of what we’ve seen seems to cluster around the livid end. [...]

By: jokaydia.com - Virtual Worlds, Education, Community, SL Rentals

jokaydia.com - Virtual Worlds, Education, Community, SL Rentals — Sat, 03 Oct 2009 17:56:53 +0000

[...] been such an exciting day for jokaydia! Rather than focussing on the negative aspects of recent events, I’ll just say that I’m really proud of the jokaydia Community of Practice for [...]

By: jjamison

jjamison — Sat, 03 Oct 2009 14:41:44 +0000

Prokofy,

I have to agree with you…scary huh? While the steps to the solution might have been handled differently perhaps, as Pathfinder mentions, the overall issue is one that SL residents ask for every day of the year…intellectual property rights protection. It is not in any way a slam against educators, nor does it mean doom and gloom for the Wiki…it's actually an opportunity to rebrand the effort to raise even more awareness.

-VB

By: Lowell Cremorne

Lowell Cremorne — Sat, 03 Oct 2009 05:04:48 +0000

Prokofy, for me the issue is that the takedown was issued on one hand whilst Jokay's wiki was promoted in official forums on the other. It's a double standard well worth some scrutiny. I've always maintained my sympathy for the difficult role LL have, but they do make mistakes and this seems one.

I've read through Pathfinder's response a few times and have to agree with KerryJ that there's a healthy does of PR-talk in there, as you would expect.

By: Prokofy

Prokofy — Sat, 03 Oct 2009 04:41:56 +0000

The Lindens are doing the right thing to protect intellectual property. It's never pleasant when you have to do that with someone willfully and knowingly violating it. And Jokay can't hide behind not knowing, as the policy was spelled out on the blog a year and a half ago, and steps indicated for how you could still link your business to SL but with their rules for how it would be manifested, and that meant not having a website with this name per se.

Educators want all this opensource, free content, free volunteer labour always, but that is not the basis for a civil society. Private property is.