At the time of authoring this article, Przemek Kucharski was a Solicitor at Allens Arthur Robinson
Second Life is a virtual world that has attracted great media attention and exponentially growing numbers of users since its launch in 2003. It borrows certain elements from better known virtual worlds – the massive multiplayer online role playing games like World of Warcraft or Star Wars Galaxies – but Second Life is not a game. Its users may interact through virtual alter-egos known as 'avatars' just as in online games, but they do not do so to slay dragons or form alliances with Wookies. Second Life is an open-ended platform, which combines many well-established uses of the internet – chat rooms, online stores, file sharing services – in a single virtual environment rendered in 3D graphics.
IP rights in Second Life content
Two things make Second Life unique among virtual worlds.
Firstly, Second Life is entirely created by its users. Just about everything you see in Second Life was created not by Linden Lab, the designers of Second Life, but by Second Life users. These users purchase 'land' within Second Life, which can then be 'built' on (using 3D graphic modelling tools and some programming knowledge) to create a shop selling virtual t-shirts, a reproduction of ancient Rome, a psychedelic nightclub or anything that imagination can yield.
Secondly, users of Second Life are allowed to retain Intellectual Property (IP) rights in any content they create and contribute. This makes Second Life exceptional. In the case of most virtual worlds, the terms of service that all users must accept prior to participating expressly take away any rights that the user may have in anything they may add to the world. Many Second Life users invest great amounts of time and money (in the form of subscription fees and 'land tax' payable to Linden Lab) in creating content in Second Life. A considerable number of users also derive a significant income from selling (for real life currency) their virtual land, goods and services to other users. Therefore, the ability to retain IP rights in these creations is potentially very valuable.
Enforcement of IP rights
But if you are Second Life user with a store selling, say, virtual handbags – each of unique design that you created from scratch, deriving value from its scarcity – how effective is the fact that you retain IP rights in these virtual handbags in protecting your investment of time and money?
Even in real life, companies like Louis Vuitton and Gucci may sometimes face difficulties in enforcing IP rights in their handbags against people who may wish to profit from counterfeits. Court action can be expensive, long and drawn out. In Second Life, your handbags 'exist' as computer code somewhere on Linden Lab's servers. Copyright still subsists in computer code, so you hold IP rights that a real life court would recognise. But the unique nature of the Second Life environment can make enforcing these rights especially difficult even before any court action is considered.
Firstly, as with all things digital on the internet, your virtual handbags are particularly susceptible, like MP3s, to being easily copied with perfect fidelity. Last year, software known as 'CopyBot', with the capability to copy Second Life content, was released in Second Life. This caused a huge outcry among Second Life users because CopyBot had the potential to wipe out the value of virtual goods by undermining their uniqueness and scarcity. Linden Lab reacted by banning the use of CopyBot on pain of account deletion. This, however, does not mean that your handbags are safe from copying.
Secondly, within Second Life all interactions occur between users' avatars. The human user behind each avatar remains anonymous unless they choose to communicate their real life identity to you. So even if you are able to identify who has been copying your virtual handbags, all that you would know about him, her or it, is their appearance, which can easily be changed, and their name, which will almost certainly be made up. 'Stroker Serpentine', 'Kermit Quirk' and 'Plastic Duck' are some well-known avatars. This veil of anonymity within Second Life is very difficult to pierce, meaning that identifying who you should bring IP infringement proceedings against is problematic. The alleged copier of your virtual handbags may have provided his credit card details to Linden Lab, but short of a court order Linden Lab is very unlikely to divulge the name for privacy reasons.
Thirdly, even assuming that this difficulty can be overcome, the problem of jurisdiction arises. The laws of which country should apply to the infringement of IP rights in your virtual handbags? Is it the law of the jurisdiction in which you are located, the law of the jurisdiction in which the alleged infringer resides, the law of the jurisdiction in which Linden Lab is based or the law of the jurisdiction in which the particular Linden Lab server holding the code that makes up your handbags is located?
So, by allowing users to retain IP rights in the content they contribute, Second Life is more generous than most virtual worlds. However, holding these rights may not be enough to protect users' investment. Firstly, the very nature of Second Life makes copying easy but identifying infringers difficult. Secondly, even if these problems could be overcome, the user would still have to rely on real life courts to enforce their rights.
Linden Lab is working on ways to protect users' IP rights in-world, including a possible system of owner registration. However, until any such system is shown to be effective, contributors of Second Life content should be warned – your IP rights are not easily enforceable and so your investment may be at risk.