Friday, December 14, 2007

Who Owns What You Create in Second Life?

I've been struggling lately to understand how to properly protect the intellectual property I create within Second Life. Here are some of my thoughts and questions. I would love to hear about your experiences and opinions.

1. If someone owns a sim and you rent from them, who owns what you create?

I think this is a no-brainer. As a renter in SL like in the real world, everything you bring to the land is yours. Everything that was there when you got there belongs to the owner of the sim - unless there is a contract you have signed that states otherwise.

Technically, can a landowner take possession of, move or destroy the belongings you place on their land? I'm not totally sure but I believe the only things they can do is return all items to your inventory. Is this correct?

2. If someone manages a sim for a larger entity, who owns what you create on the sim as a renter?

Again, I think this is also a no-brainer. The parent company only has ownership over their land and assets and as a renter, you retain ownership of yours assets - unless there is a contract in place that you've both signed that states otherwise.

3. If you work part-time in SL for the manager or owner of a sim, who owns what you create?

Now this sounds like a tricky one, but it should be straightforward. Without an actual contract designating what work is considered "work-for-hire," the assumption would be that what you create as a direct part of your job responsibilities is property of the employer.

What you create separately (for another job or business) is not the property of that employer. Perhaps if you create it while on the employer's land and during the time you are supposed to be working for them, then it could be perceived that what you create is theirs.

But if you create something not connected to the sim or during your part time hours and then bring it to the sim, it should be your asset. But how do you protect your asset? What if your employer claims it is their's by default?

4. How do you protect intellectual capital and intellectual properties versus SL objects that you bring to someone else's land?

Now this is a doozy. In intellectual property law, it is clear that you cannot protect "an idea." But when does an idea move from the ethereal and unprotected to the concrete and protected?

a. If you come up with a trade name that can be trademarked (but no formal efforts have been made to trademark it) and used in business, is that name protected so that you can retain possession if you were to move on to a new job or business? Who owns that name and who has the right to use it?

b. If you design or pay for the design of a logo and bring it to a sim owned by someone else for use on the island, who owns that design and who has the right to use it?

c. If you conceptualize, organize and market an event and bring it to a sim owned by someone else to act as the host venue, who owns that event and the assets and intellectual property that goes with it?

Without a written contract to the contrary, I think the owner remains the creator of the intellectual property unless money was clearly exchanged for the ownership or rights to the intellectual properties. But if you do not own the sim, how do you get your intellectual property back, especially if the land owner will not return it?

I think the overall answer to all of my questions is: Whatever you do in Second Life, put it into writing and have it signed by the people behind the avatars who are doing business. That includes an employment contract, a rental agreement, a business partnership - anything where money might exchange hands and assets - including objects and intellectual property - are part of the relationship.

I'm not even going to delve into whether or not Linden Lab can lay claim to what we create. I just want to explore the microcosm of the land owner/manager and the resident employee or renter.

NOTE: I'm starting a series of events for entrepreneurs after the holidays and am hoping to bring Alan Behr of Alston & Bird LLP who heads up the firm's Electronic Entertainment Group to discuss intellectual property in Second Life. Join the SL group Second Life Entrepreneurs Club or IM Cybergrrl Oh if you'd like to be notified of the event.


Mister Crap said...

Maybe when I bother putting something up for sale I'd be concerned, but at this point everything I create in-world I offer up open to all or it's built for someone else to decide what to do with it.

Even the artwork I posted for some folks could have been replicated off of their thumbnail online gallery.

Cybergrrl Oh said...

Oooh, very interesting. But is what you create part of your business? Or simply part of your Second Life enjoyment? I think it boils down to each individual's intention when they come into SL - is it just for fun and experimentation or is it for business?

Dusan Writer said...

Interesting post and questions. It's interesting how the analogy of real estate often seems to be taken literally. The concept is useful because it helps to create a language for exchange between individual users, but it can also create ambiguity.

Real estate is a metaphor for server space. Linden sets up servers, these servers are leased to individuals, who are then able to 'develop' these servers (adding bits of code and objects which we might call trees or stores) and further sub-lease them.

Therefore, just because something happens on someone's "land" is really no different from hosting a Web site on someone's else's host machine. Just because they host it doesn't mean they own it.

However, in SL this is complicated by a few factors:

1) The code creates restrictions and process around the implementing, copying, deleting and transferring of items - the bits of "improvement" that happen on a server ("island"). This code creates layers of complication which make it critical that users understand the risks and protections they should take in developing "land". Again, however, this isn't much different from a Web host deciding to turn off a server - if you have a written contract with them or can prove wilful negligence you might have a claim.

2) Linden clearly says that whoever creates an item owns the IP to it. If you choose to transfer, set permissions and so on to cede those rights to another entity that's your business. Even a 'renter' owns items they buy place or build. However, remember the restrictions above about the code - at the end of the day, the greatest flexibility lies with land owners, but that doesn't supercede ownership of IP.

3) All other issues are really no different than "real life". If you work for someone else - either for hire, under contract, or in good faith, there's no particular difference than being a freelancer. Good sense should prevail - create clarity around ownership and expectations ahead of work. Get it in writing.

But also remember that this is a trust-based economy in many senses, because the relatively small amount of monies involved, lack of a clear dispute resolution mechanism, and cross-border issues creates complications to contract-based work.

Land, islands, locations of content - these don't create legal precedents, they're simply server space. The complications arise because of code - permissions, the ability to return objects and the power to switch land ownership, and the need for trust-based relationships in a place where "real world" identification is often rare or frowned upon.

Rolig said...

Hmmmmm .... Do I detect something more than a theoretical interest here? ;-)

Ownership in SL, at least in theory, is no different than in RL. What you create is yours, unless you have given away some of your rights to ownership by making your creations as a contractor for hire and have specifically signed them over to your employer. This is true even if you don't formally register your creations with a governmental patent or copyright office. In SL, the TOS makes it clear that LL has no claim on what you create, even though you create and store it on their servers. (The catch is, of course, that you cannot remove prim-based creations from their servers, even though you own them, so they only have value in SL.)

Proving ownership of a design or concept is tricky, of course. LL makes it possible for you to transfer ownership of an object, and to allow others to make copies of it, or to modify it. Transfering ownership of the object does not mean that you have transferred your ownership of the design, but it does open the door for derivative creations (legal) and outright theft (illegal).

If a buyer modifies what you have created, is the concept now his/hers as well as the object? Just as in RL, it's not easy to tell. Changing the size of a skirt or adjusting the height of a chair are trivial changes. How about changing the texture on a dress or customizing a purchase by adding extra prims? It's hard to say.

It's even harder to say when your creation is not something solid in an inventory but rather something intangible ... like the concept for an exhibition or an event. In RL, your rights to ownership of such a concept may expire after you have shared it with an employer, on the assumption that the employer will have modified it enough so that it is no longer your creation.

If you believe that someone else has illegally claimed your creation, you can file a DCMA takedown notice with LL to block the person from using your creation. The burden of proof is on you, however, and you might have to go through long and costly legal proceedings in RL to resolve the issue in the end.

All in all, the best advice is to establish ownership in writing if you are working for someone else, and to remember that even the best contract is only as good as the integrity of the people who sign it. Also, as unfair as it seems, people who rely on the legal system to resolve their disputes usually lose when they argue with people who have bigger lawyers. Sometimes life just sucks.