This evening, I received an email containing the brief filed in the United States Court of Appeals for the Second Circuit for the case of Lauren Doninger, P.P.A. as Guardian and Next Friend of Avery Doninger, a minor, Appellant v. Karissa Niehoff and Paula Schwartz, et al., Appellees.
If you are new to this site, I would encourage you to read my coverage in the Connecticut section of this blog. For those of you who like reading briefs, I would encourage you to read the brief filed by Martin Margulies and Daniel J. Krisch of the Center for First Amendment Rights as well as the brief filed by Jon L. Schoenhorn who will be arguing the case at the Second Circuit.
Early this morning, the head of a prominent company in Second Life received an email from email@example.com It started off,
Linden Lab has received notification from counsel for [removed], that you have infringed its rights in the [removed] trademark in the Second Life environment. In particular, [removed] has complained about your use of the [removed]
trademark at the [removed] located at [removed].
Due to ongoing discussion with people involved, I’m removing references to the companies involved, pending possible litigation or other actions. I will simply note that the company head believes that there is no reasonable likelihood of confusion between his company which does business solely within Second Life and the company alleging the trademark infringement which does not conduct business.
He has attempted to contact the company, as have I. I have received no response from the company alleging the trademark infringement, nor its counsel. To the best of my knowledge, the company head has not either.
Linden Labs email continues,
Linden Lab respects the rights of both Second Life residents and
trademark owners. Accordingly, we ask that you discontinue using the
[removed] trademark in the Second Life environment. Please remove
all instances of it at the [removed] and please inform
us of a different non-infringing name for your group [removed]
If you do not do so within forty-eight (48) hours, please be
aware that Linden Lab intends to expeditiously remove references to
[removed] at [removed] and to disable access to the
The head of the company wrote that he cannot, at this point, login. If that is the case, then there is no way that he could remove the alleged infringing trademark, even if he wanted to. In addition, groups can only be renamed by Linden Labs, so neither he, nor other members of the group can be changed by them. Instead it will need to be changed by Linden Labs itself.
The email ends with
Please direct any future communications regarding this matter to counsel
It is worth noting that these 48 hours during which the head of the company has been asked to respond take place during the weekend, when he is unlikely to be around much. Even more significantly, the counsel for the firm alleging the trademark infringement is not in the office today. I called to ask for comments on this. I expect he won’t be in the office until Monday.
So, Linden Labs is asking for action take place on a disputed trademark during a time in which the parties alleging the infringement are not even available. Linden Labs would be well advised to make their requests a little more reasonable in terms of timeliness, such as allowing the alleged infringer two business days to respond, or perhaps even two business days after a response from the company alleging the infringement.
Beyond that, this raises serious issues about the terms of service that Linden Labs publishes. In specific,
1.2 Linden Lab is a service provider, which means, among other things, that Linden Lab does not control various aspects of the Service.
You acknowledge that Linden Lab is a service provider that may allow people to interact online regarding topics and content chosen by users of the service, and that users can alter the service environment on a real-time basis. Linden Lab generally does not regulate the content of communications between users or users' interactions with the Service. As a result, Linden Lab has very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Service.
Yet in this case, it appears that Linden Lab is attempting to exert a very specific control over content by threatening to remove the alleged trademark infringement from property of the company owner in Second Life. In doing so, Linden Lab would demonstrate itself not to be a disinterested service provider, but taking the side of one company over another in a trademark infringement. I believe this would set a very dangerous and damaging precedent for Linden Lab.
In addition, there are concerns about section 3.2
3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.
Users of the Service can create Content on Linden Lab's servers in various forms. Linden Lab acknowledges and agrees that, subject to the terms and conditions of this Agreement, you will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law.
It would seem as if Linden Lab is not respecting the copyright of the member by threatening to remove parts of it simply based on an allegation of infringement that has not been properly argued. That section continues,
You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and Linden Lab will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Service, including without limitation any legal consequences relating to your intellectual property rights; and (iii) Linden Lab's acknowledgement hereunder of your intellectual property rights in your Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of Linden Lab's intention not to require users of the Service to forego certain intellectual property rights with respect to Content they create using the Service, subject to the terms of this Agreement.
Yet in acting unilaterally on an unproven allegation of trademark infringement, Linden Lab would appear to be taking some responsibility in enforcing trademark concerns, independent of any due process. As such, it would seem as if they are opening themselves up to further liability by taking such an action.
It is my hope that Linden Lab, the company alleging the trademark infringement, their counsel, as well as representatives of the company alleged to have infringed upon a trademark can, in the words of the original cease and desist email “resolve this matter amicably”. However, so far the actions of Linden Lab as well as the counsel for the firm alleging the trademark infringement do not appear to make any effort to resolve the matter amicably.
I continue to seek comment from Linden Lab, the company alleging the trademark infringement and their counsel. I will keep people informed of developments.
I also want to fully disclose that I am not disinterested in this case. At the time of the cease and desist letter, I owned approximately 15,000 shares of the Second Life company. The market value of that investment in U.S. Currency is approximately $17. In addition, the head of the company, in gratitude for my writing about this and sharing with him my thoughts on what I would do in his case, has given me approximately 58,000 shares of the company, worth about $66, making my current holdings in the company worth approximately $83.
Next week, I will attend ad:tech, “an interactive advertising and technology conference dedicated to connecting all sides of today's brand marketing landscape” as a credentialed blogger. Since being added to the list, I’ve been getting emails and phone calls from all kinds of different people wanting me to write about their favorite companies. It provides a sharp contrast to OMMA, when I could barely find information about who was going to be at the show.
With OMMA, I only had the energy for one day of the conference and show. So, I’m trying to figure out how to make the best use of my time and energy for ad:tech. The list of major media speakers is staggering. Founders, Presidents, CEOs, Executive and Senior Vice Presidents of all kinds of major media corporations, from Sony BMG, NBC Universal, Fox Interactive Media, Google TV Ads, Youtube, and Huffington Post will be speaking about topics like Forging a Model of Interdependence, Global Perspectives on the Digital Revolution, Media and Entertainment: Programming, Distribution and Advertising in a Multi-Platform World and Innovate or Die! Thriving in the Age of Disruption.
Meanwhile, the model of interdependence will be tested as members of the Writers Guild of America strike to get their fair share of the revenues in the digital revolution and this multi-platform world. It will be another disruption for the major media corporations.
So, viewers are creating more media of their own, and trying to find less expensive means of accessing professionally created media. Professional writers are fighting to get a larger share of the revenues. All of this is bound to cut into the profits of the executives of these major media corporations. How can they deal with these issues?
The ad:tech special events calendar gives a clue:
MediaWhiz Annual ad:tech Poker Party
EVERYONE SHOULD PLACE THEIR BETS ON THE MEDIAWHIZ PARTY AS THE EVENT OF THE YEAR!
Open bar, Passed hors o'doeuvres, Go-Go Dancers, LIVE DJ(S), Dancing, Texas Hold 'Em Poker Tournament where you can win $10,000... ALWAYS THE #1 EVENT OF THE YEAR!!!
Personally, I’d rather see the price of digital media go down and more of the remaining revenues go to the writers and performers, but I guess in spite of my embracing of digital media, I’m just old fashioned in a few remaining ways.
I’ve always been interested in emerging open standards for open connectivity between different websites, so OpenSocial has caught my attention. Without knowing a lot about it, I’m starting to explore OpenSocial and see how it could interoperate with my preferred development environment, Drupal, as well as with other tools that I’m interested in such as OpenID, FOAF, XFN, and so on.
As I searched for OpenSocial and Drupal, I found what sounded like a promising site, www.opensocialsites.com. Perhaps this would be a list of sites that are already using OpenSocial, perhaps even Drupal sites using OpenSocial. It turned out to be a very interesting site powered by Drupal, CiviCRM and tied to N-TEN. However, it didn’t have anything to do with Google’s OpenSocial.
I also looked around a little bit for OpenID and OpenSocial, but haven’t found anything. Instead, much of the discussions are about whether or not OpenSocial is really open and whether or not it is much of a step forward.
I will leave those discussions to the pontificators. Instead, I’ll take a few moments to explore OpenSocial. Before you can do much of anything, for a programmers perspective, you need to authenticate.
The People Data API Developer's Guide, part of the OpenSocial Data APIs documentation, lists two ways of authenticating.
In the note at the top of the page, it says,
The OpenSocial People data API hasn't been released yet; this document is a preview of the developer's guide that we'll publish when we release the data API. All of the details are subject to change, but this preview should give you a general idea of what the API will be like.
It describes “ClientLogin username/password authentication” where you post an email address, a password, a source, and a service as an application/x-www-form-urlencoded content type to https://www.google.com/accounts/ClientLogin Digging deeper, it appears as if much of this is all the same old Google Gadget stuff that people have been kicking around for a while.
Will it be possible to roll this into a user authentication module for Drupal? Could this be used to make an OpenID system for Google? Will the ClientLogin be expanded to support authentication from other OpenSocial systems?
It looks like it might be a while before I get passed the authentication to really start looking under the hood.
Regular readers of my blog, when hearing the words “write-in” are likely to think of campaigns where voters write-in their favorite candidate, such as how Avery Doninger won the election as class secretary at Lewis Mills High School, even though the administration refuses to recognize the results.
For those that don’t know, I’ve decided to attempt to write a novel this month as part of National Novel Writing Month (NaNoWriMo). Yesterday, I had meetings in New York, which afforded me three hours sitting on a train, and a great chance to write. I’ve gotten off to a strong start, but I worry about whether I am starting like the proverbial hare in the story of the tortoise and the hare.
Last night, I went to my first “write-in”. This is a gathering of NaNoWriMo participants. We were supposed to meet at a local eating establishment, but they had had a flood, so we moved to a diner down the road.
There were about fifteen writers there. The organizer handed out various bits of swag. Stickers for laptops about NaNoWriMo, notepads, and an “Official Plot Ninja”. It seems as if the muses of old are getting edged out by a newer generation.
A NaNoWriMo write-in is a gathering to be experienced. A blog entry just doesn’t do it justice. However, I will try to capture some of experience here. Just about everyone had a laptop. Just about every laptop was some sort of beat up PC. There was one Mac there that I saw. There was some weird wiring to get enough power strips to everyone whose batteries would not last the duration of the write-in.
There was a lot of chatter between the writers, and perhaps some of the quotes I overheard provide the best glimpse into the gathering.
Last unicorn fan fic… Text your story on you cell phone… A plant, which she watered with coffee every morning… I dropped Latin for a reason, because I hated it, I dropped History for a reason, because I hated it...If you want instant self-esteem, just go look around MySpace for a little while…
During the write-in, some people experimented with an electric keyboard; very small and portable. You could type your text into the electric keyboard and later upload it into your PC. It had a small screen on which you could only see a couple lines of text.
One person quipped, "At least the blank page is smaller.” In the end, that is what we all confronted at the write-in, the blank page. Fortunately, many of us went away with pages having been filled up. Today, I’ll attend to other issues, but I plan on find an hour or two somewhere in the day where I can make more progress on my novel.
Are you writing a novel this month? If so, tell me about it, here, on the NaNoWriMo site, in a Facebook group, an BlogLog group, or other online communities where NaNoWriMo participants are gathering.