January 03, 2011
Second Life Ordered to Stop Honoring a Copyright Owner's Takedown Notices--Amaretto Ranch Breedables v. Ozimals
By Eric Goldman
Here's a line you don't see every day in judicial opinions: "The gist of the copyright dispute between the parties is whether Plaintiff's virtual horses infringe on copyrights associated with Defendant's virtual bunnies." This reminded me a little of that great line from Ghostbusters: "dogs and cats living together... mass hysteria!"
The underlying dispute involves rival sellers of virtual animals that require the users to keep purchasing food to keep the animals alive. The C&D letter to Amaretto goes into some detail about what it thinks Amaretto copied. I didn't follow it all, but some of the assertions are clearly dubious (in a Baker v. Selden kind of way) and none of them seemed like a surefire winner to me. The court interpreted Ozimals' position as asserting copyright over software functionality (clearly one of Ozimals' core concerns), and the court rightly dismisses the copyright merit of that position.
This ruling addresses Amaretto's request for a TRO based on 17 USC 512(f), which the court grants. This is now the third time I've seen 512(f) used as the basis of injunctive relief--the other two being Biosafe-One v. Hawks from 2007 and the recent Design Furnishings v. Zen Path LLC (which just had a new, much clearer ruling granting a preliminary injunction). In a clearly rushed opinion, the court didn't cite either case. It's interesting to see 512(f) emerge as an important tool in fighting back against cloud service providers who are too jumpy about copyright takedown notices. [UPDATE: I had forgotten about Novotny v. Chapman, a case that raised 512(f) and injunctive relief but ultimately sidestepped it.]
What's even more unusual about this case is that the court's TRO applies to Second Life (Linden Research), not Ozimals. The specific order: "Linden Research, and all persons in active concert or participation with Linden Research, are temporarily restrained from taking down from Second Life Plaintiff's Horse Product Line."
However, Linden/Second Life wasn't a party to the lawsuit, so the court is effectively stretching FRCP 65(d) to apply to Second Life as a non-party. This takes us squarely into the territory implicated by the recent Seventh Circuit Blockowicz ruling (and a funky ruling, Giordano, I will blog soon), which said that a hosting website wasn't automatically in active concert with a user who submitted enjoined content. Perhaps copyright liability is or should be different than defamation, especially given the different structures of 47 USC 230 and 17 USC 512. Otherwise, it seems like the court's TRO may be improperly trying to bind a non-party. At minimum, the court should have explained why it was discussing a TRO against Second Life.
The order binding Second Life also raises some troubling First Amendment issues. Second Life has the First Amendment rights to decide what to publish and what not to publish. If Second Life decides, for whatever reason, that it wishes to kibosh Amaretto's content, it seems improper for a court to force it to do otherwise. This point is completely unaddressed in the court's opinion because Second Life wasn't a litigant and couldn't advocate for its own interests. I could see why Second Life would basically agree to something analogous to an interpleader (effectively turning over the user-vs.-user copyright dispute to the judge and agreeing to abide by the judge's instructions). However, in a quick perusal of PACER, I didn't see anything that looked like Second Life consented to be bound by the proceedings. Were Second Life to fight this order on First Amendment grounds, I think it would have some mojo in that challenge.
In the other two cases I mentioned, the injunctive relief restrained the copyright owner from sending more takedown notices. In light of both the FRCP 65 problem and the First Amendment, it's not clear from this brief opinion why that approach wouldn't have sufficed. That way, Ozimals' 512(c)(3) takedown notices would stop, but Second Life could still retain its constitutionally protected editorial discretion.
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