Intellectual Property and Copyright Issues in Social VR/Virtual Worlds: A Follow-Up Editorial

Apparently, Ghoster (whom I interviewed previously) is quite peeved at me for, and I quote, “bashing [his] server and VRChat”.

I didn’t even realize he was upset with me until I started chatting with him today on his new Discord server, Hi-Fi Traders, which is set up much the same as his previous server, VRChat Traders: a forum where people seeking a custom avatar can connect with avatar designers, creators, and riggers. The services are quite popular, and some people likely make a good side or full-time income from custom avatar creation for paying customers.

Ghoster probably has a right to be angry with me, after what I wrote about intellectual property and copyright issues in virtual worlds. He might feel, and not without some reason, that it was a personal attack. (It certainly wasn’t, but I can understand where he’s coming from.)

And it would appear that I have now been banned from Hi-Fi Traders, and probably VRChat Traders, too. I was still on the Hi-Fi Traders Discord channel when I found myself suddenly kicked out.

Before I was unceremoniously booted off his server, I told Ghoster (twice) that I would gladly give him a guest blogger spot to post a detailed rebuttal of my original blogpost, but it would seem that throwing me out was the preferred approach. I still stand by my original blogpost, and the argument I am making today. Also, I am not singling out VRChat, either; I have also blogged about IP infringement on OpenSim-based virtual worlds, and what I have to say here applies to all metaverse platforms, not just VRChat.

All I have done is point out that people charging money for the creation of custom avatars, where they do not own the intellectual property, are operating on sketchy legal grounds. Ghoster told me today that the high number of concurrent users on VRChat makes it difficult to police this sort of thing. That’s true. But frankly, that’s not an excuse for clear-cut cases of copyright infringement.

Custom avatar creation is a sort of cottage industry, much like those peasants who did piecework on their weaving looms before the Industrial Revolution came along. That’s fine, and I fully and completely support that work. (Many people still make a living creating and selling content on Second Life after 15 years of operation, for example.)

And creating a custom avatar inspired by someone else’s intellectual property is okay. For example, Roger Rabbit in the film Who Framed Roger Rabbit is based on a mash-up of Bugs Bunny, Mickey Mouse, and Goofy:

Roger is a slender, white rabbit with large blue eyes, pink nose, a tuft of red hair who wears red overalls, yellow gloves, and a blue yellow polka dot bow tie. He is an amalgamation of various classic cartoon characters; taking Bugs Bunny’s cartoon rabbit form, Mickey’s gloves, and Goofy’s baggy pants. Animator Richard Williams described the process of creating him like an “American flag” with the red overalls, white fur and blue bow tie and American audiences would enjoy him subliminally.

But, if you make an exact copy of Mickey Mouse as a custom avatar for somebody and charge them money for it, don’t be surprised to find the Disney lawyers breathing down your neck (or, more likely, going after VRChat, High Fidelity, or whatever virtual world is hosting that avatar). Even worse, if you create a Mickey Mouse avatar modified in some X-rated way, you’re really skating on thin ice if someone reports you to Disney Inc. They don’t look kindly on that sort of thing.

And I do know that Linden Lab (for example) is monitoring items placed in the Sansar Store, to ensure that no copyright-infringing items are placed up for sale. (They do have Star Trek items up, but it is with the explicit permission of the Roddenberry estate.) In fact, very recently, a lovingly-detailed, fan-made recreation of the Enterprise from Star Trek: The Next Generation was pulled offline following a cease and desist from CBS.

As far as I am aware, VRChat is still not doing that sort of checking. (And giving it away for free isn’t an excuse.) They are opening themselves up to a possible lawsuit. So is any other social VR platform or virtual world that is allowing people to recklessly copy somebody else’s intellectual property without permission. And if the company owning the IP comes after a virtual world platform, they have no choice but to comply.

And kicking me off your Discord server, because you don’t want to hear that, isn’t going to change that reality one bit.

DisneyCopyright
You might not agree with it, you can protest it, but it’s the law.

Sorry, Ghoster. I hope you can forgive me over time. But it doesn’t change the facts. Your beef isn’t with me; it’s with the system. If you disagree, then put your efforts into copyright reform, not into a personal feud with me. Don’t shoot the messenger.

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Intellectual Property Issues in OpenSim/Hypergrid

I have been exploring a couple of OpenSim-based virtual worlds that were recommended to me by people who were leaving InWorldz. One of the features about OpenSim that fascinates me is the Hypergrid feature, which allows you to visit other OpenSim-based grids without having to create a new avatar from scratch.

OpenSim grid operators advertise their grids as “open” (Hypergrid enabled) or “closed” (you are unable to visit other grids from that grid). I must confess that I have never visited open grids before, so it has been quite the experience teleporting from grid to grid. Most of the time I didn’t even know what grid I was actually on!

At one of the grids I visited, someone kindly gave me a list of freebie stores, and I went exploring. I don’t even know which grid I was on when I came across this particular sim:

Hypergrid 1 28 July 2018.png

With this prominent sign:

Hypergrid 2 28 July 2018.png

I entered the Mesh Body Shop you see in the background of the first picture, and I found a lot of free items that looked very familiar to me from my time in Second Life: Catwa mesh heads, Belleza mesh bodies, Bento AOs from Vista Animations, etc.:

Hypergrid 3 28 July 2018Hypergrid 4 28 July 2018

And I thought to myself, “That can’t be right.” So I did a little investigating on the internet, and I discovered that intellectual property theft happens on some OpenSim grids. Moonrise Azalee posted an item to the Opensim Virtual group on Google+ a year ago (here’s a link to her post):

I know this isn’t a popular opinion – but when I see regions advertising themselves on OpenSimWorld with ‘freebies’ and those freebies are Catwa heads, Freya, Maitreya (clearly pictured), and upon checking these freebies out they also include Blueberry clothing and other rigged mesh items specifically for Freya and Maitreya – I find it really disappointing.

I don’t condone botting – but I know its pretty common. Someone has an item they paid good money for elsewhere and have no moral or ethical qualms about taking it out of the Big Grid so they can use it elsewhere. That in itself is a different topic outside of this. But to see these items taken from creators who spent a lot of time and money of their own to use programs and create items that take many hours to do – just offered for free to anyone as though it is some sort of good deed is kind of sad.

When I first found a body called Athena, I was pretty excited. Then I put it on and realized it was Maitreya’s Lara. Even some parts were still named as such, and the clothing for it was identical to the blueberry clothing I have for Maitreya in SL. So trying another body – one called Mesh Body I believe – I saw it was Freya and had freya clothing.

And in a few other stores I saw these same bodies not even being disguised but actually just called Freya – and the Maitreya sales box with Athena written on it.

It just kind of discredits the OpenSim community. I understanding wanting to be a free comunity – but commercial creators DO deserve to get paid for their hard work. I am sure we have people here talented enough to take on the task of creating great content and they can do so and then give it away for free. But using exported items without permission KNOWINGLY (i do realize some people might not know what these things are, especially if they weren’t familiar with them in SL) and giving it away for everyone else to use just seems kind of cruddy.

In fact, the owner of one OpenSim grid, DigiWorldz, has gone so far as to ban the Athena mesh avatar body from their grid:

Hello All,

I want to clarify a few things concerning the banning of the Athena Mesh bodies.

Some users are upset about our decision and understandably so. After you spend time setting something up, it tends to be a pain to have to change and start all over.. I get that.

Please understand, this isn’t being done based on “Rumors”. Granted, it started out with “Rumors” from users telling me the bodies were copybotted and are not legal. These rumors continued and finally I started telling people to please contact the creator and have them send me a DMCA claim and I’ll be happy to remove them. The DMCA never came. Meanwhile, other rumors started being spread about DigiWorldz allowing copybotted items and that we condone the use of illegal content, which is very far from the truth.

Since our inception that has been a basic core belief of mine.. to protect “All” creator’s content, no matter which grid they live on.

Why am I telling you this?

Because I want to prove my point that I have always been interested in doing the right thing by protecting the rights of the creators in OpenSim.

I don’t care if the creator is on SL, OSGrid, Metro, InWorldz, or any other grid. I will always stand by them and do my part to help protect their content.

The facts are that this issue with the mesh bodies has been reported multiple times. We have been waiting for a DMCA claim from the creator of the “Lara” body in SL to come forward and put in this claim so that we could take action. This claim never came. Meanwhile our name was being dragged thru the mud as a haven for copybot content which simply is not true.

Today, we contacted the creator of the Lara body in SL and asked them specifically if the Athena mesh bodies found in OpenSim grids was a direct copy of the lara body. The answer was yes. We asked if she had given permission for these bodies to be in OpenSim, the answer was no.

Based on that exchange, it makes these bodies in OpenSim illegal.

Now, I don’t just remove something from the grid when I get a report from someone. I have to have substantial proof of the claim before I will act on it, otherwise, anyone could cause trouble for someone by claiming illegal content.

We now have legitimate proof these bodies are in OpenSim illegally based on direct communication with he creator in SL.

Unless someone can prove the creator of the Lara body in SL is wrong, these items will stay banned.

So, when exploring the Wild, Wild West of Hypergrid-connected OpenSim grids, you should be aware that some of the “free” items you are buying may be property stolen from Second Life creators.

UPDATED: Intellectual Property and Copyright Issues in Social VR Spaces/Virtual Worlds

justice-2071539_1920.jpg
Image by AJEL from Pixabay

My recent interview with Ghoster got me thinking about the issue of intellectual property (IP) and copyright regarding avatars in social VR spaces/virtual worlds. VRChat is already infamous for having a multitude of avatars ripped from innumerable video games, TV shows, and movies. High Fidelity has decided to take a page from VRChat’s playbook (and, I assume, try and attract some of that VRChat crowd) by allowing people to set up a few domains where you can select from a wide variety of popular characters, owned by Disney and other companies, as your avatar:

Avatardz in High Fidelity 28 Apr 2018.png

Now, the creator of this particular domain skates around the legality of this by offering these avatars for free; no money is being made from this. A prominent disclaimer sign posted in the Avatardz domain states:

Avatardz in High Fidelity 2 28 Apr 2018.png

So, this user doesn’t advocate “piracy from independent and small artists.” What bothers me about this statement is the unstated implication that piracy from Disney or another large corporation is somehow O.K. (maybe because they can afford to swallow the losses more easily?). Also, they seem to justify this blatant IP appropriation as a sort of fan art, a “fan-operated source for pop culture avatars as a tribute to our pop culture legends”.

(Note: High Fidelity is a distributed open-source platform, allowing users to host named domains on their own servers or on the cloud. This means we should not automatically assume that the Avatardz domain is officially sanctioned or supported by High Fidelity.)

I came away from my interview with Ghoster of VRC Traders a little troubled by the copyright and IP issues involved in selling custom avatars to VRChat users that are wholly or partially based on characters owned by somebody else. I did a little research and came across this recent article on IP issues in virtual worlds, from the website Intellectual Property Watch (a non-profit independent news service), which states:

In the virtual world, people appear through their avatars. If they design the avatars themselves, they could be subject to copyright and trademark lawsuits, Lemley and Volokh said. Fictional characters’ images together with their unusual character traits are protected by copyright, so users who copy enough of the visuals, character traits or both to be copyrighted expression and not simply an idea might be infringing. If the use is non-commercial and the copyright owner isn’t distributing licensed avatars, the use might be fair use, but selling such avatars without rights owner approval would likely not be fair use, they said. It could also amount to a trademark infringement.

Rights holders might choose not to go after individual users or small avatar sellers, but to sue the AR or VR operator for contributory infringement, the paper said. The operator might be immune under the US Digital Millennium Copyright Act, but only until someone sends it a notice-and-takedown request that isn’t quickly acted upon, it said. Established case law sets out the limits of intermediary liability under the DMCA; there’s less clarity about intermediary liability for trademark infringement on the internet but the law is developing, it said.

The Digital Millennium Copyright Act (DMCA) is a process often used (and, in a few cases, abused) by vendors in Second Life and other virtual worlds who claim that someone has stolen their intellectual property. The process is laborious, tedious, and probably could be improved. Many large corporations don’t seem to think that it’s worth their time and money to go after people who are stealing their IP in social VR spaces/virtual worlds. For example, Warner Brothers probably doesn’t care much that dozens of people are selling Superman-themed items on the SL Marketplace, even though they fought (and won) a protracted legal battle to cement their copyright to Superman. They probably are reserving their lawyer firepower for the bigger and more egregious cases of copyright infringement.

I have said before that VRChat may get into serious trouble if people continue to flout the copyright laws so shamelessly, particularly if they are starting to making healthy profits at it, as seems to be the case with the community that has sprung up around VRC Traders. We could be in for some interesting legal cases in the years ahead.

UPDATE 3:34 p.m.: Obligatory link back to the VRChat Events website (because I promised them I would do it if I cross-posted over on their Discord server, and I forgot!): www.vrchatevents.com

Also, Second Life and Sansar blogger Inara Pey made such a great comment on this blogpost that I wanted to add it in full here. She said:

IP infringement and the “it’s OK to flout IP of big companies ‘cos they can afford it” is a source of heated debate in SL. In 2012, I reported on the CBS / Star Trek situation. There’s also been the Universal / Battlestar Galactica situation.

Both of these focused more on props, models, and costumes from said series than avatars, but the attitude towards their IP was the same. It was further coupled with the view that “well, we’re fans and so they should be grateful to us for our support”. However, both attitudes not only falsely justify infringement, they also overlook the importantly equal matter of licensing.

In short, major studios – Marvel, Disney, CBS, Universal, et al, generate millions in revenue by issuing merchandise licenses to manufacturers and commercial concerns. As such – and no matter how large or small the unlicensed market or how small the turn-over / profit made by those actively engaged in selling unlicensed goods – the license owner has a legal obligation to project the licenses they have sold, as well the right to protect their IP.

This was as much behind the Universal / CBS situations vis BSG and Trek as anything else – a point many of those railing at both companies at the time, and citing (in Trek’s case) non-binding “arrangements” which may have been offered by prior rights holders, seemingly failed to grasp.

The idea that offering something “for free” is equally a slippery path. As you point out, it’s only a short step from offering “for free” to then offering items for sale. This has been demonstrated (again) in SL with both the Star Trek and BSG situations.

In both cases, Universal and CBS backed away from legal action on the understanding that virtual goods relating to their IP investment in both shows would not be made with the intent to sell for profit. As a perusal of the SL Marketplace will demonstrate, neither agreement has been adhered to by virtual content creators. Ergo, there is still a potential ticking bomb on this subject in SL, should the legal departments of either studio swivel back towards virtual environments and virtual “goods” … which the slow rise of VR might actually encourage.

Also, there seems to be a broader view that because specific understandings were reached by some (again, I’ll use the CBS / Universal agreements, as those are the two I have direct knowledge of) are somehow a “blanket OK” from all IP holders to allow copies of their IP to be offered for free – which may not actually be the case. Again, that’s actually down to the individual studios to decide; just because X has gone that route, doesn’t mean Y will – or is obliged to even consider it.

Just as a point of reference, my own (slightly long-in-the-tooth) articles on this subject can be found at:

https://modemworld.me/2012/11/02/of-copyright-ip-and-product-licensing/ (Star Trek)

https://modemworld.me/2010/11/29/bsg-universal-dmca/ (Universal / BSG)

https://modemworld.me/2011/02/08/bsg-limited-roleplay/ Universal / BSG)

FreeWee Ling also had a great comment when I cross-posted this blogpost to Drax’s 114 Harvest community on Facebook:

People have been screaming about IP issues in SL since the beginning. Several years ago there was a series of open talks in SL featuring attorneys with expertise in IP who examined the LL TOS. Not much was resolved other than a statement from LL that their “intention” was not to steel user content, but that they needed certain rights in order to allow people to use the Marketplace and just to generally present the content on the platform. A lot of artists were not satisfied and you’ll find many of them still working in OpenSim grids where they have more control.

Disney and others are vehement about controlling how and where and by whom their IP is presented. There was a Disney themed fan sim in SL some years ago that, if memory serves, got notice to remove their content of face legal consequences. The Frank Lloyd Wright Foundation closed down a sim full of great Wright model homes in SL, even after the owners contacted them and at least got tacit permission to do it. (I.e., I think they had been told the foundation wouldn’t endorse it, but also wouldn’t stop it.)

Ultimately, I’m pretty sure any copy of virtual content without permission is theft. Whether there is money involved or not.

UPDATE Nov. 19th: I have posted a follow-up editorial here.