This letter is written to bring attention to the rampant abuse of the DMCA protections, the bullying of, and muscling out of any and ALL competition to the Emerald Speed Rezzer, and the illegitimacy of any and all claims of copyright and alleged copyright infringement accusations brought up by the maker(s) of the Emerald Speed Rezzer. It is written to speak up against the false, unsubstantiated removals of legitimate products from the XStreetSL website by Linden Lab, and to call for reinstatement of every rezzing gesture that was previously available for either sale, giveaway, or any other form of legitimate transfer to another, as well as the removal of that strike against the name of those who were falsely accused.
I am writing this open letter to address some things I have been witnessing since earlier this year, and quite frankly, I am highly irritated and disappointed. I have witnessed the bullying, harassment, and eventual false claims of copyright infringement, resulting in DMCA take-downs of perfectly legitimate items, namely rezzing gestures for the Emerald Viewer. As I did some research, I have come to several conclusions, all of which will be stated in this letter, with references to sources found online, links and notations.
Firstly, as this concerns the Emerald Viewer, and the command shortcut that was developed by the Emerald Team, I will quote this snippet, found on the Emerald Viewer forums, posted here ( http://modularsystems.sl/
"While we may not necessarily agree or endorse certain products sold that bear the name Emerald and work in conjunction with the viewer, anyone is free to make them and either give them away or sell them.
Nobody is stopping anyone from making a competing product if they feel that someone is taking advantage of the public in some way."
This quote clarifies that the Emerald Team, while not agreeing with the use of their name, or command shortcuts, have not placed any restrictions on ANYONE who wishes to use them in the making of a product, free or otherwise. In fact, they go on to say that "nobody is stopping anyone from making a competing product."
That was true until now.
I have done a fair bit of research, and have found that several other makers of this type of rezzing gesture have been harassed, berated, falsely accused of content theft, and even have had DMCA take-downs filed against them and their rezzeing gestures removed from the XStreetSL website ( http://www.xstreetsl.com ), for something that is freely given by the Emerald Team, to be used in any way one sees fit, by EVERYONE. Not only that, but the ones harassing and possibly using the DMCA as a weapon against their competition to help them monopolize the rezzing gesture market, seem to be succeeding, as theirs is now the only Emerald rezzing gesture found on the XStreetSL website ( http://www.xstreetsl.com ), the Emerald Speed Rezzer. This person and their SL & RL Partner, have harassed anyone who they perceive as competition for their business, and it is a damned disgrace that a tool meant to protect the Intellectual Property Rights, of all content creators, is used as a weapon to beat down all competition in a free market into submission. They wish to tout this as though it were their invention ( http://lookwhathecatbrought.
In fact, the product they claim is copyrighted by them, as best as I can tell after careful reading and research, does not fall under the protection of United States federal copyright laws. I shall even go as far as to say they do not seem to have the rights to copyright or in any way claim ownership, as they did not invent the command shortcut that the gesture, and all others like it, use. That was developed by the Emerald Team, and as I quoted previously, they are aware of the use of that command shortcut, and consent to its use in making a product, though it is not endorsed by them.
"What Is Not Protected by Copyright?
Several categories of material are generally not eligible for
federal copyright protection. These include among others:
• Works that have not been fixed in a tangible form of
expression (for example, choreographic works that have
not been notated or recorded, or improvisational speeches
or performances that have not been written or recorded)
• Titles, names, short phrases, and slogans; familiar symbols
or designs; mere variations of typographic ornamentation,
lettering, or coloring; mere listings of ingredients
or contents
• Ideas, procedures, methods, systems, processes, concepts,
principles, discoveries, or devices, as distinguished from a
description, explanation, or illustration
• Works consisting entirely of information that is common
property and containing no original authorship (for
example: standard calendars, height and weight charts,
tape measures and rulers, and lists or tables taken from
public documents or other common sources)"
(Excerpt taken from http://www.copyright.gov/
I shall quote this one section, which I feel shows plainly that this, and any other rezzing gesture, are not eligible to be copyrighted and/or under the protection of the United States federal copyright laws, unless created by the Emerald Team. All others are merely using the work of another, with permission, to make their product, but they do not have IP rights.
As they do not have the ability to copyright the process and thus product, due to not having the ability to claim IP rights over it, the only thing they could copyright is the name, correct? No, incorrect.
"Several categories of material are generally not eligible for federal copyright protection. These include among others... Titles, names, short phrases, and slogans"
That said (or rather, quoted), they are not copyrighted as they claim to be, due to the simple fact that it cannot be covered under federal copyright laws. Now, while copyrights do not apply to titles, names, short phrases, and slogans, trademarks do.
I will quote from the Harvard Law School website ( http://cyber.law.harvard.edu/
"1. What is a trademark?
A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another. 15 U.S.C. � 1127. For example, the trademark "Nike," along with the Nike "swoosh," identify the shoes made by Nike and distinguish them from shoes made by other companies (e.g. Reebok or Adidas). Similarly, the trademark "Coca-Cola" distinguishes the brown-colored soda water of one particular manufacturer from the brown-colored soda of another (e.g. Pepsi). When such marks are used to identify services (e.g. "Jiffy Lube") rather than products, they are called service marks, although they are generally treated just the same as trademarks.
Under some circumstances, trademark protection can extend beyond words, symbols, and phrases to include other aspects of a product, such as its color or its packaging. For example, the pink color of Owens-Corning fiberglass insulation or the unique shape of a Coca-Cola bottle might serve as identifying features. Such features fall generally under the term "trade dress," and may be protected if consumers associate that feature with a particular manufacturer rather than the product in general. However, such features will not be protected if they confer any sort of functional or competitive advantage. So, for example, a manufacturer cannot lock up the use of a particular unique bottle shape if that shape confers some sort of functional advantage (e.g. is easier to stack or easier to grip). Qualitex Co. v. Jacobson Products Co., Inc., 115 S. Ct. 1300 (1995).
Trademarks make it easier for consumers to quickly identify the source of a given good. Instead of reading the fine print on a can of cola, consumers can look for the Coca-Cola trademark. Instead of asking a store clerk who made a certain athletic shoe, consumers can look for particular identifying symbols, such as a swoosh or a unique pattern of stripes. By making goods easier to identify, trademarks also give manufacturers an incentive to invest in the quality of their goods. After all, if a consumer tries a can of Coca-Cola and finds the quality lacking, it will be easy for the consumer to avoid Coca-Cola in the future and instead buy another brand. Trademark law furthers these goals by regulating the proper use of trademarks."
I hope I am not reading too much into this, taken from the opening of the previous quote, but I am very interested in this portion:
"... used to identify a particular manufacturer or seller's products and distinguish them from the products of another."
The only protection that could cover the maker(s) of the Emerald Speed Rezzer, is protection of their name from being used by others, but does not stop others, nor is intended to stop them from making similar, competing products. Some examples would be Coca-Cola and Pepsi or 7UP and Sprite (soda companies), Brawny and Bounty (paper towel brands), and any competing brands for the same category of consumer goods anywhere. This is what a free market should be like, there should be choices for the consumers, rather than a monopoly on any particular niche. However, based on the actions of the maker(s) of the Emerald Speed Rezzer, they disagree strongly, to the point of harassing and berating anyone who makes similar products and thus providing competition. There have been DMCA take-downs filed against several other rezzing gesture makers, resulting in those competing products being removed from the XStreetSL website ( http://www.xstreetsl.com ).
Now, due to the DMCA take-downs that have stemmed from the false claims of copyright infringement, the only rezzing gesture available for purchase is the Emerald Speed Rezzer. Is that fair to the makers of other rezzing gestures, who essentially have the go-ahead of the Emerald Team, who initially made the command shortcut being used to make competing gestures if they so wish? Is that fair to the consumers to have no other options or choices, all because one maker chooses to abuse the DMCA system to eliminate and bully any perfectly legitimate competition? The DMCA is there to protect COPYRIGHTS, and as I have shown previously in this letter, United States federal copyright laws and protection do NOT cover the Emerald Speed Rezzer or any other rezzing gestures on the market. So why is the Digital Millennium COPYRIGHT Act (DMCA) being used as a weapon against those who have not infringed upon any copyrights, since there are none to infringe upon? Why is one individual taking it upon themselves to use what should be there to protect legitimate copyrighted materials, and instead using it to muscle out any legitimate competition, thus monopolizing the rezzing gesture niche market?
"3. What prerequisites must a mark satisfy in order to serve as a trademark?
In order to serve as a trademark, a mark must be distinctive -- that is, it must be capable of identifying the source of a particular good. In determining whether a mark is distinctive, the courts group marks into four categories, based on the relationship between the mark and the underlying product: (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic. Because the marks in each of these categories vary with respect to their distinctiveness, the requirements for, and degree of, legal protection afforded a particular trademark will depend upon which category it falls within.
An arbitrary or fanciful mark is a mark that bears no logical relationship to the underlying product. For example, the words "Exxon," "Kodak," and "Apple" bear no inherent relationship to their underlying products (respectively, gasoline, cameras, or computers). Similarly, the Nike "swoosh" bears no inherent relationship to athletic shoes. Arbitrary or fanciful marks are inherently distinctive -- i.e. capable of identifying an underlying product -- and are given a high degree of protection.
A suggestive mark is a mark that evokes or suggests a characteristic of the underlying good. For example, the word "Coppertone" is suggestive of sun-tan lotion, but does not specifically describe the underlying product. Some exercise of imagination is needed to associate the word with the underlying product. At the same time, however, the word is not totally unrelated to the underlying product. Like arbitrary or fanciful marks, suggestive marks are inherently distinctive and are given a high degree of protection.
A descriptive mark is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients). For example, "Holiday Inn," "All Bran," and "Vision Center" all describe some aspect of the underlying product or service (respectively, hotel rooms, breakfast cereal, optical services). They tell us something about the product. Unlike arbitrary or suggestive marks, descriptive marks are not inherently distinctive and are protected only if they have acquired "secondary meaning." Descriptive marks must clear this additional hurdle because they are terms that are useful for describing the underlying product, and giving a particular manufacturer the exclusive right to use the term could confer an unfair advantage.
A descriptive mark acquires secondary meaning when the consuming public primarily associates that mark with a particular producer, rather than the underlying product. Thus, for example, the term "Holiday Inn" has acquired secondary meaning because the consuming public associates that term with a particular provider of hotel services, and not with hotel services in general. The public need not be able to identify the specific producer; only that the product or service comes from a single producer. When trying to determine whether a given term has acquired secondary meaning, courts will often look to the following factors: (1) the amount and manner of advertising; (2) the volume of sales; (3) the length and manner of the term's use; (4) results of consumer surveys. Zatarain's, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983).
Finally, a generic mark is a mark that describes the general category to which the underlying product belongs. For example, the term "Computer" is a generic term for computer equipment. Generic marks are entitled to no protection under trademark law. Thus, a manufacturer selling "Computer" brand computers (or "Apple" brand apples, etc.) would have no exclusive right to use that term with respect to that product. Generic terms are not protected by trademark law because they are simply too useful for identifying a particular product. Giving a single manufacturer control over use of the term would give that manufacturer too great a competitive advantage. Under some circumstances, terms that are not originally generic can become generic over time (a process called "genericity"), and thus become unprotected."
This snippet from the preceding paragraphs strongly supports the fact that the Emerald name is trademarked to the Emerald Team:
"An arbitrary or fanciful mark is a mark that bears no logical relationship to the underlying product. For example, the words "Exxon," "Kodak," and "Apple" bear no inherent relationship to their underlying products (respectively, gasoline, cameras, or computers). Similarly, the Nike "swoosh" bears no inherent relationship to athletic shoes. Arbitrary or fanciful marks are inherently distinctive -- i.e. capable of identifying an underlying product -- and are given a high degree of protection."
Nothing about the name "Emerald" suggests its purpose, but you can mention the name, and almost anyone who knows about Second Life can tell you this is an alternate viewer for the Second Life application/game. It is unique to them, and has been graciously allowed to be used by others for descriptive purposes in the name of their products. Would it be fair then to allow someone using the Emerald name in their product, to trademark something that is trademarked to someone else? Not at all! However, there are several phrases used by the maker(s) of the Emerald Speed Rezzer, that should indeed remain trademarked to them. Unfortunately, they claim copyright on those phrases, and as previously quoted from the U.S. Copyright Office website, "Titles, names, short phrases, and slogans; familiar symbols or designs" are not eligible for federal copyright protection.
The maker(s) of the Emerald Speed Rezzer cannot copyright the gesture as it is also merely a method to simplify the process of adjusting draw distance via the command shortcuts developed by the Emerald Team. By his own words, the maker calls this gesture a concept, and I quote:
"Second, this is a VERY simple concept, and wasn't hard to make." ( http://lookwhathecatbrought.
By his own words, he has indirectly agreed that this product would not be eligible for federal copyright protections.
"Several categories of material are generally not eligible for federal copyright protection. These include among others... Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration"
They cannot copyright the name or phrases they use, as United States federal copyright protection does NOT cover "Titles, names, short phrases, and slogans; familiar symbols or designs." They only possess the particular phrases they coined for the rezzer and that would be covered under federal trademark protection, despite the erroneous claim of copyrighting those terms, rather than stating they are trademarked.
So why were legitimate products removed that neither infringed upon any copyright(s), as the Emerald Speed Rezzer would NOT be covered under federal copyright protection and/or laws, removed due to the filing of false copyright infringement claims, bearing in mind that the Digital Millennium COPYRIGHT Act is intended to protect copyrights? In fact, these rezzing gestures neither infringed upon trademarks or copyrights, and thus were and still ARE legitimate.
This letter was written to bring attention to the rampant abuse of the DMCA protections, the bullying of, and muscling out of any and ALL competition to the Emerald Speed Rezzer, and the illegitimacy of any and all claims of copyright and alleged copyright infringement accusations brought up by the maker(s) of the Emerald Speed Rezzer. It was written to speak up against the false, unsubstantiated removals of legitimate products from the XStreetSL website by Linden Lab, and to call for reinstatement of every rezzing gesture that was previously available for either sale, giveaway, or any other form of legitimate transfer to another, as well as the removal of that strike against the name of those who were falsely accused.
This was also written to demand, yes DEMAND, actions against the maker(s) of the Emerald Speed Rezzer, for harassment, libel, and false accusations including but not limited to accusations of content theft and breaking of federal copyright laws. I also demand, on behalf of ALL who have been victims of this attempt to monopolize the rezzing gesture niche market via underhanded tactics, harassment, and libel, a formal written apology from the maker(s) of the Emerald Speed Rezzer, as well as a withdrawal of every unsubstantiated, unfair accusation of copyright infringement made to Linden Lab, including but not limited to those that resulted in the take-down of legitimately competing rezzing gesture products.
To those who think that,"Oh this is just a game, no reason to be upset", I have one simple answer for you, stemming from the words my mother raised me with:
"The one thing you have and carry with you from birth to the grave is your character, guard it carefully. A mark or blot against your character is like writing on a pad of paper, even if you remove the sheets with the writing, the impressions remain."
I write this in the interest of clearing the blots and marks against the collective character of all those who were targeted by the underhanded tactics of the maker(s) of the Emerald Speed Rezzer, and not for any personal gain.
I, Kitten Krakauer, hereby state that I am not an alternate avatar (alt) of ANY of the competing makers of rezzing gestures. I am merely a witness to the fiasco that has been taking place, and refuse to stand by idly while the character and integrity of others is smeared by the mud of false copyright infringement claims. I know it surely is not in anyone's character to turn a blind eye to injustice, and this situation reeks of injustice. I know this letter will finally bring to the attention of all, Linden Lab included, and rid content creation and protection from the stench of lies and false accusations.
I have written this and stated everything in a forthright manner. I hereby notify anyone who wishes to discuss this that all chat, IM, notecards, and any other recordable methods of communication concerning this will be logged, saved and that I reserve the right to quote and disclose any and all information and statements therein. I prefer not discuss anything pertaining to this on voice in Second Life, in the interests of all parties involved.
Enclosed at the bottom of this letter, for your convenience, are the website links for the references I used and information about copyrights and trademarks. I trust that you will weigh everything carefully and come to the right decision and just conclusions.
Kitten Krakauer
-References-
Modular Systems website forum (makers of Emerald Viewer)
- http://modularsystems.sl/
- http://modularsystems.sl/
Look What The Cat Brought Blog
- http://lookwhathecatbrought.
United States Copyright Office website
- http://www.copyright.gov/
- http://www.copyright.gov/
Harvard Law School website
- http://cyber.law.harvard.edu/
- http://cyber.law.harvard.edu/
Cornell University Law School website
- http://topics.law.cornell.edu/
Second Life Blog
- https://blogs.secondlife.com/
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