The three-day bloggers “strike” ended yesterday, and Linden Lab issued further clarification on their new trademark policy. I wasn’t really sure what to say or how to feel about it.
At first, I was excited. We (bloggers, whether “strikers” or not) managed to evoke a response from Linden Lab. And a seemingly sympathetic response, at that. It was a well-spun post, I’ll admit. I was suckered in for a while. I so very much wanted to believe that everything was all good now.
But it’s not. Linden Lab has now confirmed that they are waving the banhammer threateningly at anyone who doesn’t comply. Their assurance that they will issue warnings first, reads like a sherrif from an old cowboy movie, brandishing his gun and saying, “Come along quietly, now. I don’t wanna have to shoot you, but I will if it comes to that.”
Linden Lab has also said, in plain terms, that they will use the Terms of Service as a tool to enforce compliance both inworld and offworld:
The Terms of Service are the conditions under which Linden Lab offers the Second Life services. One of those conditions is adherence to our trademark policy, meaning that any use of our trademarks–both inworld and outside of Second Life–must comply with our policy. (emphasis mine)
Clearly, this is a gun aimed squarely at the Residents, since the Terms of Service doesn’t apply to anyone except Second Life users.
And lest there be any confusion, this isn’t something that Linden Lab had to do to protect its trademark. This policy reaches beyond all logic, and beyond the requirements of U.S. trademark law. (As always, remember that IANAAL — I am not an anal-retentive lawyer. I’m just a concerned Resident with two ears and a brain between them.)
Firstly, non-commercial use of a trademark (e.g. on a fansite such as this one) is not considered infringement under United States Code, Section 15 (a.k.a. the Lanham Act) which spells out U.S. trademark law as we know it. The Lanham act also explicitly makes an exception for “All forms of news reporting and news commentary” regarding the thing the trademark refers to; that’s why newspapers don’t have to ask permission every time they print the words “Microsoft” or “Second Life”. Whether blogs qualify as a “form of news commentary” is not legally well-defined yet, but I think there’s a strong case to be made that many blogs do, depending on what’s posted. (This post, for example, is clearly news commentary: I’m commenting on the news of Linden Lab’s policy clarification.)
For the curious, I’ll excerpt the relevant text of the Lanham act:
The following shall not be actionable under this section:
(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
(B) Noncommercial use of a mark.
(C) All forms of news reporting and news commentary.
Secondly, the risk of “genericide” from bloggers referring to Second Life by name is patent nonsense: not only does it fail to dilute their trademark, it actively strengthens their trademark by establishing and reinforcing the connection between the name “Second Life” and the services offered by Linden Lab. This non-dilution is recognized under the doctrine of “nominative fair use,” which has received significant support from judges in the Ninth Circuit Court of Appeals in the time since it was first applied in 1992.
The deciding factors for determining whether something is nominative fair use are as follows (excerpted from this PDF by Chad J. Doellinger; and also spelled out on Wikipedia for your satisfaction):
(1) the product or service in question must be one not readily identifiable without use of the trademark;
(2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and
(3) the defendant must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder
(And mind you, this is for commercial use of someone else’s trademark. Noncommercial use is already in the clear under the Lanham act, and doubly in the clear if it passes these tests.)
You’ll notice that I’ve said “Second Life” quite a few times in this blog post. Am I liable for infringing and/or diluting Linden Lab’s trademark? Let’s check.
- Since I cannot readily identify the Second Life service or world without using the trademark “Second Life”, the first test is passed.
- Since I’m not going beyond the bare mininum, e.g. using the eye-in-hand logo or the font used in the Second Life trademark, the second test is passed.
- And since I’m not implying sponsorship or endorsement by Linden Lab (and in fact, I’m going to extra measures to expressly disavow it), the third test is passed.
I can therefore be quite confident that a judge would find this to be nominative fair use, and thus neither infringing nor diluting the trademark. Add to that the fact that this blog is noncommercial, and that it also might qualify as a form of news commentary, and I’m in the clear under the Lanham Act, too. In other words, Linden Lab has no legal basis to object to my use of the words “Second Life” throughout this post.
But as I mentioned above, Linden Lab’s legal department has decided to reach beyond the law, and add further constraints under the terms of service; they have decided to be bastards above and beyond the call of duty. Noncommercial use, nominative fair use, news commentary use… they don’t care about the law, they just want you to obey their nonsensical, self-destructive whims.
Well, I’m going to continue to talk about Second Life and Linden Lab. And I’m going to call them by their names. And I’m going to continue to do all the things that I and other Residents did to give life to Second Life and get Linden Lab where they are today.
Linden Lab can go ahead and smack me with the banhammer and send me as many baseless Cease & Desist letters as they want. The moment they do, I’ll willingly stop talking about Second Life, contributing to Second Life, or logging in to Second Life, because at that moment I would know that Linden Lab had fully deluded itself into believing Second Life can exist without a community.
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