Not On Strike

A group of bloggers led by Gwyneth Llewelyn are going on strike for 2 weeks over the trademark issue.

I won't be joining them. Benjamin Duranske is right about the law on this. (His motives for being anti-immersionist-community might be in question, and his own overweening ambitions are repulsive -- he's likely to take the opportunity to recast the Second Life Bar Association as the Virtual Worlds Bar Association or some such -- ugh). But he's also right about the expensive fight involved and the unliklihood of gaining written authorization through special request. Nobody Fugazi even seems to concede this.

Not only do I disagree with the striking bloggers or think they are wrong -- I don't even get what they are about. I'm all for showing labour solidarity, especially to effete unpaid blog snobs lol, but...I have to understand what they are after. Long, incoherent and senseless blog posts and appeals in hortatory fashion to "the community" seem beside the point now, when a crisp, law-based request in writing from counsel needs to go to the Lab about sites like SLCN.tv or SLExchange.com to clarify why these can't be registered at RL businesses. It's that part people justifiably find the most outrageous.

Rhetashan continues to make no sense whatsoever, however. Somewhere in all of this, she got the really silly idea that Linden Lab was trying to make all bloggers refer to Second Life, Linden Lab, and all other things Linden with their TM or R signs. LL made no such request -- it's absurd. She like others who don't seem to be very familiar even glancingly with media law or practices, thinks that's possible to do -- and of course it's not, and of course LL didn't even do it, what's more. Rhetashan needs to come to her senses, open up any newspaper of the day, and notice that *gasp* they write about companies constantly and never put things like "IBM (TM)" or anything of the sort. It's not required. The reference is to an advertising context. If the point is that she's doing this substitution game as a parody, as a form of protest, then continuing to do it in a petition to the Lab makes her look stupid -- she isn't making a coherent request.

By hysterically fooling around with substituting all mentions of SL or LL on her blog with "that which cannot be named", she's not even funny because it looks like she just doesn't get it, and judging from her letter to Catherine Linden, which is absurd, I think she actually doesn't get it.

I wish I could find the link now, but on a Portugese blog discussing this that I picked up off the Google news feed, I provided a full and frank rebuttal to Gwyn's concepts -- she had some HORRIBLE suggestions to Linden, including making them overreach to monitoring third-party sites and encouraging residents to report on trademark violations (!!!) on third-party sites. Ugh! I dunno WHAT that gal is smoking. NFW we'll be doing that, even under the guise of getting "more trademark latitude" lol.

She also makes two false arguments, that I've rebutted on her blog:

1. The fansites made Linden Lab what it is today and brought business to them, and therefore LL shouldn't bite the fans' hand that feeds them even if they use the hand-eye logo (they didn't; interviews with the FIC mascots promoted by the Lab by RL media are what brought sign-ups)

2. The community "deserves" to be given some kind of special consideration -- this is lurching toward "group rights" of the collectivist philosophy and I'm just not buying it -- no group of people in SL deserve more rights than other individuals or groups. All should be equal before the law.

The trouble involved in changing a name from Second Life to SL plus two proper nouns is vastly exaggerated. I changed my domain name and moved my content from "The Second Life Record" to "SL Citizen Record" in an evening. To be sure, all the links back to my articles from other blogs are now broken, but it's not that big a deal.

I respect private property; I respect the right of a company to trademark its name under the law. I'd wish for the same thing to be accorded to me. I've followed the rules they provided to keep a reference to SL, but that meant forfeiting my right to register a RL business with that mark. And...that's a loss why? I'd be daft to register a business in real life calling anything except Second Life Cashout Fund lol. Please. The smart money is on diversifying and calling oneself Metaverse something or Meta something or Virtual World something (but not "Virtual World Conference"or "Virtual World Management" because the wily Chris Sherman trademarked those already lol).

Naturally, I'm wondering what the story is with the SLART guy. He has two contradictory seeming posts. He registered the mark, but...hmmm now he has a RL business with SL reference and to go on using that without a problem he was supopsed to forfeit that right -- of course you're forced to sign the TOS even to log in.

I'm also wondering whether secondlife.reuters.com will get a big pass, or whether the big media dudes will simply close their bureau if they get any guff from the Lab, as they came in under colour of use of the mark with a clear understanding.

And that's just it. Rather than whining, blogging, striking, sniffling, crying, you have to adopt that attitude. Better to beg for forgiveness than ask for permission. Wait for them to come after you, don't pre-conform if it is that important to you and you think you have that much of a case. In my little circles, it seemed reasonable and clear to follow their request and if I register any new business, to have the good sense to call it something different unrelated to anything "Second".

The Second Life Herald is also going to do: nothing. They may not join the strike because to do so would mean they'd be acceding to this crazy list of demands Gwyn cooked up, with includes resident monitoring of third-party site behaviour with reports to the SL abuse-report system -- double ugh! -- hopefully they won't be too far in the bag to sign up for that.

I bet Linden will not immediately take SLH on -- they will wait for the opportune time. I just don't know. The Herald doesn't do them any favours.

It seems to me the Herald is in the wrong, regarding their policy. However, my opinion on this is an amateur one. Perhaps some smart lawyer can make the case that the fankit and the existence of the use of the mark without comment for more than 4 years means a tacit concesssion and a loss of claim to the mark. I don't know all the fine points of the law and would love to hear them, and see it play out.

I also think there's just a difference between European and American sensibilities here. Americans tend not to worry about a tax or a putative tax or somebody maybe thinking of a tax or somebody making a claim of a trademark or whatever until the actual IRS or lawyer's letter arrives, and then...they might talk to their lawyer and make an offer lol. The Europeans scuttled frantically when the VAT thing came down and became absolutely hysterical over the documentation issue instead of waiting for some Eurocrat to actually serve notice on them. I'm not aware of a single European that got a single notice from their authorities over VAT and SL. So their hysteria not only seemed misplaced; it might have been mistaken -- those that had businesses of any substance just reported what they needed to in order to write it off as an expense and get a refund.

So, what I'll do is wait and see if there is actually a lawsuit against the Herald, or some kind of notice from LL (I'm not sure how this would arrive -- a letter from counsel would likely be the first step). At such time, if they are clearly notified, I'd ask to be removed from the masthead, because I don't want to be associated with something that is clearly violating law and the subject of a lawsuit -- especially when the Herald hasn't explained any legal arguments in their favour, haven't been coherent on this, and are just punting at this point.

So...Why not step down now? Oh, because I've always believed in forcing Mr. Pixeleen, and by default Uri and Walker, to remove me for their arbitrary and censorious reasons and expose themselves as hypocrites, -- and not making it easy for them.

For Pixeleen to be drunk-dialing me and telling me I'm harassing her reporters, by the simple fact of writing that Jessica doesn't know labour history if she thinks all unions were called "communist" lol, means he's completely lost it. He can "stand up for her authors" and tell me to stop harassing her authors? Oh? And...where was he when I was being harassed with far, far more horrendous stuff than a claim that someone doesn't know history, with voluminous posts from the PNs. Ugh.

I'd like to hear all the legal arguments in their defense -- and I don't want to hear them from Europeans who are willing to beg for permission and keep begging if it is dispensed to them. I REALLLLLY hated the way Gwyn asked Robin for permission to demonstrate in front of the Mansion in the office hour. That is REALLY obsequious and stupid, and lowers the bar for all our struggles in SL.

Comments

[Prokofy Neva]

Here's the link to the Portugese blog:

http://portucalis.wordpress.com/2008/04/05/petition-to-linden-lab-on-the-policy-of-trademark-enforcement/#comment-1677

[Cherowolf Redgrave]

When I first saw Gwyn's strike declaration I laughed because I thought it was a joke. After reading your blog I stand corrected. Apparently I am severly obtuse because I don't get what the purpose of a strike is supposed to accomplish. I was not aware that Linden Lab has made past decisions based on blog opinions so does anyone really believe they will start now? All I see this accomplishing is less blogs to scroll thru on the World of SL website. I wish them luck and will gladly admit I was wrong if it does manage to produce any results.

[Prokofy Neva]

Oh, I don't mind strikes or protests -- love 'em. I join some of them. Some I find whiny and self-serving (Cristiano's letter). Some I don't get (Gwyn). But it's not effective. Gwyn has enormous cred with the Lindens. She just shouldn't squander it in this way, I think. But she knows them better than I do.

[Chav Paderborn]

I've been following this on blogs and really did think we were meant to pul TM or R or C or whiever after any use of SL and so on. Glad to get that cleared up.

[Prokofy Neva]

No, Chav, it was never stated to do that, ever. It is not common practice, either, as anyone can see in any newspaper or professional tech blog. The wording of the Lindens' statement was even clear, that the context was about commercial use in competition with their own mark, i.e. to offer a paid service called Second Life Something.

[Crap Mariner]

Noticed you said it was two weeks.
I thought it was only for three days.

Hrm... me not posting goofy snapshots and occasionally semi-relevant braintrash for two weeks. Sounds tempting, actually.

In all, I don't think it's going to be terribly effective. As you've pointed out, even Reuters appears to be shifting (based on Reuters' mangling of news stories and use of stringers with ties to terrorism, it's probably due to the disparagement clause).

Any real effort would need to come from someone who feels they would spend more on rebranding than on attorney fees.

[Desmond Shang]

Hey, since I don't have a blog, does that make me on strike too?

Been thinking of doing one, though. Then everyone can kibbitz at me in the comments! Fair turnabout, after all this time.

Prolly it would be the most unread black hole in the entire blogosphere. Which is about the only thing the idea has going for it, I guess...

[Prokofy Neva]

Crap, @EricReuters said on Twitter that this domain had always been linked. But I see it differently. I don't see a main home page with "secondlife.reuters.com" anymore, and if you type that URL, you are redirected now to sl.reuters.com -- I think they complied.

I thought I read somewhere April 13 through -- 2 weeks something. But maybe it really is only 3 days. Have to check.

[cat magellan]

So you a) don't get your facts right (it's 3 days) and b) don't "get it" about Gwyn's Manifesto. That does not stop you from writting a few thousand caracters about it. I do hope that, on your other posts about other subjects, you may be a little more aware of whatever is going on...don't dispair! I will enlight you in very simple terms (and lousy english, I'm afraid):

1. We would like to keep our domains, some of us, since we are not breaking any law (or at least here in Europe, I'm not aware that laws can be applied in arrears) and

2. We want to be sure that we will not be banned from SL because of the ToS link to the TM policy.

I would comply with the change of domain, its tiresome, but I could do it, if I was not feeling subject to a "blackmail" from those ToS. This way, it irritates me very much and I get in a revolutionary mood. Granted, It's not a big one, but even you wrote about it, so it does make some waves, otherwise you would never bother.

[Prokofy Neva]

1. Glad to hear it's only 3 days! Because it's stupid : )

2. I don't get Gwyn or Rhetashan because neither is making sense.

3. Yes, laws can be applied in arrears when a trade mark is established. Done all the time. Read up on it. You're also welcome to do nothing, stop whining, and save your fight for when they come after you.

4. You are whiners and wusses. You aren't going to be banned -- Gwyn established that at an office hour. And if you really are worried, then comply (I did, because I have customers who depend on me to show up, and I don't see why I'd get banned over a private property issue -- when I respect private property).

5. You aren't being blackmailed, Ms. Entitlement-Happy, trademark law is being applied on your hobby as a fansite.

Meh, you and your revolutionary moods. Save it for real struggles, this is peanuts.

[Smoke Wijaya]

I agree that a lot can adjust/comply easily with changing to the use of 'SL' with the 2 generic nouns-demand, but one aspect of the new policy around 'SL' and 'inSL' is however worrying me a lot and that is guideline 7, that of 'impermissible use', which says:

"Your SL Associated Name must not be, and must not be used for any business, organization, product, service, website, or activity that is, in Linden Lab's sole opinion:

-Violent, racially intolerant, or advocating against any individual, group, or organization;

[...]

-Misleading, defamatory, disparaging, tarnishing, obscene, or otherwise objectionable."

I think this part is even important for your blog name "SL Citizen Record", regarding criticism of LL and several (inworld) groups and individuals.
Will they now be able to reach to third party blogs, like yours, which use "SL", when they for instance publish chatlogs or qouting Lindens?

I do not see much talk about this part of the whole trademark policy though, but I do think that it is an important point to get clear.
I tried to get some more information regarding this from Robin, but without succes. She just answered with checking for the 2 generic noun-demand.

Anyways, I am not a lawyer (really wish I had finished that law study now), but I wonder also whether they are 'justified'/'allowed' to set this policy around a wordmark that is not even a *registered* one yet?

>"I REALLLLLY hated the way Gwyn asked Robin for permission to demonstrate in front of the Mansion in the office hour. That is REALLY obsequious and stupid, and lowers the bar for all our struggles in SL."

Yes, I totally agree.

[Ciaran Laval]

Striking bloggers sort of defeats the object for me, unless you're writing for a blog site like Livejournal and even then it's a stretch to justify it.

You surely gain more by spreading the word and fighting your corner, not going into hiding.

[Alex Herrmann]

Calling this farce a strike, it’s an insult to the RL strikers, the RL people/society that are affected by strikes, and even to the very term "strike"! Grow up!

[Prokofy Neva]

Like I said, Smoke, that sort of language doesn't apply to my blog, and I think it's easy to mount a defense for any attempt to overreach to the content of my blog with that sort of idea.

If they attempted to apply those overbroad and overreaching concepts to me, I'd simply change my name and keep doing the same thing. I do respect trademarks. If their narrow concern is merely disparagement of their mark, and not the content of the speech, then I'd change my name before I'd change a thing about what I write.

You also kept making the mistake of demanding from the Lindens some pre-interpretation of this language, which could be used arbitrarily. That's a terrible tactic. You never want to demand a pre-interpretation of overbroad language. You have to wait for them to attempt to apply it, then expose its overreach, not try to make a deal with them by somehow getting a pre-approval of yourself.

Robin is NEVER going to give you a pre-interpretation of overbroad law applied just for you, Smoke, and it is just plain retarded to keep wasting office hours with that kind of shit. It harms the ability to raise other more relevant stuff. The idea that you could gain assurances of legal interpretations in some meeting like that is absurd. You shouldn't be doing this. You should be waiting for them to come after you, if you have a name that isn't tied up with some kind of business. If it is, you should change it and stop walking around in victim mode.

[cat magellan]

Ciaran, I blog in Portuguese. Mine is the fist portuguese blog about SL. I've been interview on national newspapers, radio, Ana Lutetia who writes on my blog has been in magasines, national tv, etc. The strike here in my country made national news (the main daily newspaper) on the first day because the portuguese Slogsphere was behind Gwyns Petition. You might say, so what it's a small country (if you forget about the brasilians who also read my blog), but I blog in this language, so all my objectives, locally speaking, have been achieved.

[cat magellan]

As for the silent "going into Hiding" I advise you to have a look at SL Bloggers, where everybody is discussing the issue, including Kit Meredith, an TM attorney that may know a bit more of the applications and implications of these rules than myself (and you, Porkofy). Oh, and Wagner Wu just picked the subject...

[Ciaran Laval]

Being behind Gwyn's petition is one thing, I just don't see the point in not blogging. If anything it's a time when those who are concerned should be making more noise, not less.

[cat magellan]

Ciaran, just check it out. Believe me, there is a lot of noise going on. One does not have to use ones' own blog to protest.

[Desmond Shang]

Gee, I wonder if the Company(TM) will ever worry about my usage of their name in my writings...

grin

[John Lopez]

I really wish people going into business (yes, even virtual business) would learn about the foundations of intellectual property: Trademark, Copyright (including Moral Rights where applicable), Trade Secret, Patent and Design Rights.

Not deeply, just enough to not sound like blithering idiots when they discuss them. I see people applying copyright ideas to trademarks and vice versa all the time. Pretending they have patent protections over things that aren't patentable. Thinking that stealing a trade secret makes it *not* a trade secret. Thinking that "independent invention" invalidates patents.

The vast majority of bloggers use the term Second Life in a completely untouchable way in regards to trademarks. Benjamin nailed it in pretty much every regard. He even is right that someone funded well enough can put up an estopple argument (four years of inaction *and* a request that fans use the materials is a fairly strong basis for *compensation*), but nobody is actually going to do so because the amount of compensation would be dwarfed by the costs of litigation.