Here's a fascinating situation I have been planning to write about for the past several days, brought to my attention by my colleague Alec Austin here in C3 and what I would consider a strongly viable alternative to the issues of fair use we've been writing about here on the blog on several occasions as of late. I believe this is the type of response most other media companies could learn from.
For those who haven't heard about the parody site of Second Life, the site is called Get a First Life, a parody of the popularity of Second LIfe. Take this promotional line for "Teen First Life," for instance: "America's teens, your First Life dream world awaits. Hang out at the mail! Embarrass yourself in gym class! Get acne! Experiment with mind-altering recreational drugs. The First Life world is your oyster."
The site was launched by Vancouver blogger Darren Barefoot, poking fun at the immersive nature of Second Life and all the media hype surrounding it. We've certainly written about Second Life enough times in the past year, from the innovative ways in which advertisers are infiltrating that space (much more adept use of that space than the way advertisers are handling first life these days, as I wrote about earlier this month) to the ways in which media companies are launching their products into Second Life, such as Ninja Tune music videos.
Traditionally, the response to this type of parody site would either be to ignore it or to send out a letter claiming use of one of its trademarks or something of the sort. However, Second Life did neither. In fact, it took an activist approach that leaned toward what we would call the collaborationist approach, as opposed to a prohibitionist approach, acknowledging the site's existence and granting permission based on its use of parody, thus still leaving the door opening for prosecuting more blatant ripoffs of the company's intellectual property.
In his note to me, Austin wrote, "It's pretty classy, actually. Anyway, the last move (the grant of the license) is interesting because it both legitimizes Second Life's behavior in terms of the moral economy, *and* legally protects their trademark. By freely granting a non-transferable, non-dividable (etc.) license to use their trademark, Linden Labs is exercising strong control over their tradmarked IP... so if someone else tried to use that IP, Linden Labs could still sue them for trademark infringement."
I couldn't agree more.
Barefoot calls it a "proceed and permitted" letter, rather than "cease and desist." Commenter Ginsu Yoon posted, in Darren Barefoot's comments section, an official response to the site, acknowledging that it uses trademarked property and informing the site of the copyright issues surrounding this use. The statement said:
We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com/ constitutes parody - it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.
Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.
In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.
Notwithstanding the foregoing, it is possible that your use of the modified eye-in-hand logo for Second Life, even as parody, requires license from Linden Lab, especially with respect to your sale of goods with the parody mark at http://www.cafepress.com/getafirstlife/. Linden Lab hereby grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo (as displayed on http://www.getafirstlife.com/ as of January 21, 2007) to identify only your goods and/or services that are sold at http://www.cafepress.com/getafirstlife/. This license may be modified, addended, or revoked at any time by Linden Lab in its sole discretion.
The decision has garnered some positive energy toward Second Life, as noted by Patrick on Making Light, who wrote, "This kind of response buys them a metrick truckload of slack from me. Well done."
Derek Slater with the Electronic Frontier Foundation writes, "This letter is exactly what we would hope companies might do when faced with a parody. Not only does it acknowledge that the site is a fair use, it also provides an explicit license for trademark. Kudos to Linden Labs, and shame on the rights holders who claim that they have to go after anyone who makes any use of their copyrights or trademarks." Meanwhile, Amy Gahran with Poynter writes that the situation "represents an excellent way for people and organizations to respond to parody."
Over at "A Bowl of Stupid," a former lawyer even vows he wants to go to work for Linden Labs after reading the post. The author writes:
I love it! Although he could have written to Barefoot simply acknowledging the various IP issues at stake, Yoon uses standard legal jargon to counter-parody Barefoot's humor.
This letter is exactly how companies should respond when faced with obviously allowed uses of their intellectual property rights. Linden Labs doesn't waste time with any non-issues; instead, it expressly acknowledges that the "First Life" site is a parody site and, therefore, most likely a "fair use" of its copyrighted materials under applicable terms of the Copyright Act and/or the Lanham Act.
What is also refreshing is how Yoon also expressly acknowledges something that many lawyers advocating their client's position do not -- that "determining whether or not a particular use constitutes fair use ... is often highly complex and frustratingly indeterminate[.]" Indeed, the only winners in most of these situations are the outside counsel billing hundreds of dollars an hour while pushing their clients to pursue questionable claims.
The author concludes, "God, how I wish I could have ever, EVER had a client with sufficient business acumen and good sense to understand that more good would be accomplished by allowing, and even sanctioning, such actions than would ever be accomplished by attempting to strong arm the alleged perpetrator into submission."
The move has certainly gotten a lot of attention from the blogosphere, but will it encourage other companies to follow suit in the future? We shall see...