September 12, 2012
“Our intention is to gather creators and artists from all “virtual reality” platforms in order to collect, and organize factual information about rights and responsibilities of content creators.”
Sounds good and although I have reservations about such an organization, I know that my bias is due to personal experience with quite a few grass roots organizations. Yet those same experiences have me looking closely at CCU because some organizations do succeed.
But before I begin tearing in, let me say that there is a very good reason for my doing so. People should make their decisions based on all the information available tempered with logic and sound reasoning. And sound reasoning comes from asking questions and pointing out issues.
So, to begin with, here’s a group of seven people who are forming a group to help us to protect our intellectual property. A very laudable goal and I have no problems with that. But two issues were immediately apparent from the announcement.
“As creators of intellectual content we are responsible for our own work. Currently it has been up to the individual creator to take legal action when alleged infringement occurs.”
“The Content Creators Union will support and assist creators in facilitating this process. The DMCA is a legal action that creators have as an option to protect copyrighted work. We will investigate each claim as soon as possible and ask our members when taking action against possible violators to give them the benefit of doubt.”
With this arises the issue of jurisdiction. Not all content creators are under the jurisdiction of the Digital Millennium Copyright Act. Jurisdiction is usually determined by the location of the grid in the Real World. Second Life, InWorldz, Created Worlds are all based in the US and so they are covered by the DMCA. Although I am Canadian, my content in InWorldz and Created Worlds are protected under the DMCA since that is the jurisdiction named in the respective Terms of Service agreements that I agreed to.
But what about my online instance, Misfit’s Folly? I own and operate Misfit’s Folly and so it is covered under Canadian copyright law, not the DMCA. No, that doesn’t make Folly a piracy haven, it just means that I have to apply a different legislation to such matters. Fortunately, its not much of an issue as it is such a small place I can police it quite thoroughly. The point here, though, is how will the CCU help content creators who are in a similar position?
Then there’s the promise of investigation. To be blunt, CCU has no such authority, training or experience. They place themselves in a position of liability if they investigate a claim and come to an incorrect finding. If someone acts on that finding and that person suffers a loss, then CCU may be liable for damages.
Another issue that surfaced was in response to my comment after the article. The lack of knowledge. I am confident that anyone with an interest in intellectual property protection and copyright are aware of the Electronic Frontier Foundation, yet the CCU is not. How can a group work towards a goal if they are unaware of other groups and resources with similar goals?
Before I move on to the CCU’s Charter and Articles, I’m going to take a moment here to address an issue that was raised in another comment, the fact that the seven members are all active in SpotOn3D. This is no more an SO3D initiative than it is a Second Life one. After all, six of the seven are also in SL. Are we going to start thinking that SO3D and SL are somehow working together? So, let’s just pass on that one as being coincidence.
So, let’s move on to the CCU Charter and membership requirements.
According to their membership application page, "The Content Creator’s Union, (CCU) is being assembled in an effort to establish standards and best practices for grid owners and creators alike.” and they have listed some of the things they want to deal with.
“How the content may be distributed on the grid” Can you imagine Linden Lab’s reaction? Or any other grid? No grid is going to let CCU or anyone else dictate how content is sold, traded or otherwise distributed on their grid. This would be like a group of shoppers telling WalMart what goods to put on what shelves in what stores.
“The criteria, time frame and method of executing DMCA’s” CCU has no say in this. Neither does a grid nor any individual. That is because these factors are already addressed within the DMCA itself and nobody has the authority to change any of this. If a grid does not comply with the “criteria, time frame and method of executing DMCA’s” as detailed by the DMCA, then that grid risks serious litigation.
“How content purchased by grid owners and their team members may be used” I would expect a grid to comply with whatever licensing comes with the content. If a grid does not comply with the licensing, then they become liable under the relevant copyright laws, don’t they? And then there’s the bad publicity that any such violations would bring about. A grid can probably survive copyright litigation, but the bad publicity would destroy them.
Then there’s the Charter itself, which lists nine articles as being a proposed “Artisan Bill of Rights”.
“1. All Trademarks, Copyrights and Intellectual Property Rights are retained by the original creator/artisan unless otherwise agreed upon by written document that is held in trust with the platform owner and the CCU.” Sounds good until you realize that the platform owner is not going to create a separate document to cover what is already covered by their ToS. Nor will they do so for a sub-group of users, which is what the members of CCU would be. Also, when it comes to a Trademark, it has to be registered and so ownership of the trademark is always retained.
“2. In return all CCU members are expected to provide proof of any extended licenses for prefab kits used in the creation of their works to the CCU and platform owners and/or an email from the original content/prefab kit creator to the CCU and platform owner stating their permissions to any particular creator or kit user. This is to enable a everyone to be on the same page and reasonably limit everyone’s risk factors, false accusations of ownership and the many other problems arising from kit makers and their customer base.” I don’t make prefab kits, but if I were, I certainly wouldn’t spend my time emailing my licenses to CCU and the owners of the various platforms where I sell my kits. Imagine if I had a dozen kits on a dozen grids. I am not going to send 156 emails out (12 kits on 12 grids plus CCU). I expect the purchasers to comply with my licensing or possibly face litigation.
“3. The sale and distribution of said same are to follow the CCU’s standard TOS/EULA, unless otherwise stated in the individual creator’s documentation as advertised via all marketplace listings and/or provided inside the packaging of their content.” This is not going to happen. Does the Furniture Maker’s Union (if there is one) dictate how how chairs and tables are sold in a department store?
“4. In return, all CCU Members are required to give fair and true information as to the usage rights of their content sold and/or distributed at the purchase point, so that consumers have all the details needed to make an informed decision.” Don’t consumers receive that information when they purchase the product? If information of the usage rights is not included with the product, then the product gets treated as unlicensed. Which leads to a lot of confusion and grey areas, but my understanding is that the creator retains all copyrights, though with reasonable latitude in how the purchaser uses the product.
“5. No company and/or grid owner and/or platform owner shall have the right to exercise authority over a CCU member’s content/assets unless given written permission to do so in trust.” This is another one that won’t happen. That is because a grid’s ToS already deals with this. Then there’s the DMCA. If a grid receives a take-down notice, then the grid owners have to exercise authority over a CCU member’s content/assets to remove the content and assets so as to comply with the law.
“6. In the event of the sale, merger and/or closing of any grid and/or platform, the assets of the CCU Members will be handled in the following manner:
a. CCU Members will be given no less than (60) sixty-day notice before the change of ownership is executed. This is to enable each CCU Member the time needed to review any new terms of services, do a background check on the new owners, and make a decision as to whether their content will remain on said platform or be removed by themselves. This is unenforceable. Notices of the change of ownership of any business is already covered under the applicable laws. Same with notices of closure.
b. If the latter is the written request and choice of the individual CCU Member, then any and all content assets of theirs, excluding previously sold items, are required to be removed from the database. If a content creator decides to leave a grid, for any reason let alone a grid’s ownership change, they have the responsibility and obligation of deleting and removing unsold content themselves. Anything further is unworkable as this would require the grid owners to search the whole of the grid for unsold content and assets as well as removal from archived backups.
c. If the above is chosen, all avatars are to be renamed as the examples illustrate below, and thereby rename the original creator of any previously sold assets created by the CCU Member as follows: EXAMPLE Before: Joe Smith After: CCU-LTD JoeSmith ( just a suggestion) The sale or merger of a grid is complicated and costly. In such a situation, to make such a demand is unreasonable. Furthermore, avatar names are generally retained as it is too costly to the new grid owners to require all users to rename their avatars.
“7. The CCU and its Members will work closely with platform owners and their designated admin staff to in order to assist in security of content on that grid. This includes a through exploit evaluation and installation of a CCU Information Station at near the platform’s entry area to promote education of users and new content creators alike.” This won’t happen as it involves all sorts of liability and security issues. Furthermore, for a grid to comply with this would be to give the impression to users in general that CCU is a part of the grid administration and have authority in the operations of the grid.
“8. The CCU will provide the platform owner with a web based DMCA complaint form for users to fill out about suspected illicit content, as well as a formal DMCA form for the content creator that will be automatically sent to both the platform owner and/or designated admin and the CCU. The following steps outlined below are suggested as a means to expedite all complaints in a fair and unbiased manner. First of all, only the content creator can initiate anything under the DMCA. Users can only notify the creator of suspected illicit content. Furthermore, such notifications are handled by a specified agent of the grid, as required by the DMCA. To include the CCU may also be an infringement of privacy. As for sub-articles 8a, b, c, d and e,
“a. Acknowledgement within (7) seven business days.” Covered under the DMCA.
“b. An investigation will commence within (7-14 days) seven to fourteen business days.” Grids have no power or authority to investigate claims of copyright infringement. That is the purview of the Courts. Furthermore, for a grid to conduct such an investigation may infringe on their safe harbour status.
“c. If there is a question of whom is the original content creator of questionable virtual goods, both parties are responsible for submitting live screen share views of their creation files and/or any legally filed copyrights.” This is evidence. As such, it falls under the procedures of a court action. Furthermore, consider the event of two people creating similar products. If I build a white two-masted sailing schooner and you build a white two-masted sailing schooner, who is the actual creator? We both are as we built our creations independent of the other. There is no copyright infringement.
“d. The creator that submits the most credible and legal proof, including creation dates on screen shared HD, will be deemed the original creator.” Again, what about independent creation? If I build my schooner two days after you, I haven’t infringed on your copyright. As for any the creator submitting the most credible and legal proof, that is for a court of law to decide, not a grid owner or a group of users.
“e. Any disputes of these presentations of ownership can then only be handled by a reputable mediator or arbitration service at a fee to the creator.” The DMCA defines how such a dispute is resolved. A court may decide whether a mediation or arbitration is appropriate. Furthermore, it is for the courts to decide who pays any fees.
“9. If a member of the CCU is under consideration for suspension or permanent banning from any platform, the CCU requests that a written notification to the creator in question and to the Content Creators Union be sent via (moc.liamg|zerpnoinusrotaerc#moc.liamg|zerpnoinusrotaerc) with a detailed description as to why. This is to ensure the CCU Member has a fair opportunity to answer any accusations and to remove content of their own creation after a (2) day cool down period.” Suspensions and banning from a grid is covered under the grid’s ToS. No grid is going to make exceptions for a sub-group of users. No grid is going to share private information with a third party, which is what this article does by requesting that a detailed description of the reasons be sent to the CCU. Furthermore, grids generally have a process in place for a suspended or banned user to explain and appeal such a decision.
One side point I must make. In this article I refer to sub-groups of users and that grids will make no exceptions for any sub-groups if users. I want to make clear that I do not apply this to any sub-group of users that are disabled. Clearly, grids will make exceptions for disabled persons, but only specific exceptions, such as access limitations or the use of specific software that the disabled use. Grids will not make exceptions for a sub-group such as the CCU.
I understand that these are the very first days of the CCU. What I have done here is to point out the problems and issues that they must address if they are to achieve their goals. Helping content creators to protect their rights is a laudable goal. Introducing requirements over and above those required by law is unworkable and unnecessary. Introducing requirements that are in conflict with the relevant legislation renders those requirements as unenforceable and unworkable. Perhaps even illegal. Introducing requirements that cost grid owners and/or users time, money and other resources will not be accepted by those owners or users.
The best thing that the Content Creators Union can do is to build a large membership while pressuring all levels of governments around the world to change the laws to protect all content creators. In fact, that is the best thing that any and all of us can do.