Who Has ‘Metaphysical Jurisdiction’ In Second Life?

See, I warned you.

This conversation comes courtesy of the Association of Internet Researchers‘ annual conference, which happened recently. Virtual worlds were a focal point at the meeting, as people are investing real time, energy, and money in creating and maintaining virtual worlds and virtual economies.

Thus, it begs the question as to whether virtual worlds need real-world regulation, or if they are capable of self-regulating via a type of free market economy and existence. But to answer that question, other questions about the nature of virtual worlds and the people who have an existence in them must be answered.

It’s not too late to get out, by the way, before we get into some really mind-bending stuff.

The gods of these worlds are by no means collectively imagined, nor are they anthropomorphic or democratic. Lawyers don’t deal in world-gods, so they label them differently: the virtual world providers. An example would be Linden Labs, which runs Second Life.

So, before we can get into the nature of the virtual world and the virtual people within it, we first must understand the nature of the creator/provider. The provider has the power to delete anything and everything that exists in the virtual world. As it is not in the interest of the provider to delete everything that exists, the provider holds a power it will not yield.

However, the provider can and has motivation to pick and choose on a singular basis what does exist, including avatars, currencies, and other objects. It is debatable as to whether the provider is held in check or self-regulated by a democratic process – i.e., too much tyranny unmakes existence as avatars choose not to exist in such an environment – or if the provider exists as a sort of benevolent dictator, maintaining an equilibrium that keeps avatars happy and motivated enough that existence proves fruitful.

A reasonable person might think it was a combination of both, but the model only applies to proprietary software-driven virtual worlds where all is controlled and maintained by mono- or even polytheistic entities. Some argue, though, that even if virtual existence were governed by open source – i.e., the avatars creating in concert their reality – " it still wouldn’t solve the normative determination of what’s fair to do to players."

Still with me? Good.

But what if a third party, an evil within, a devilish presence, runs amok as a hacker with the power to strip away virtual assets that could be ascribed value in the real world. Who is accountable? The hacker thief, of course, is primarily responsible, and punishment rests with the provider, who, ironically, created a world where the hacker thief could exist in the first place.

And if so, what responsibility does the provider bear for the allowable existence of the hacker-thief? Some might say the provider is absolved of all responsibility via the end-user license agreement, a document all within the virtual world have access to, but less than one percent have read. The avatars should have known better than to make risky investments in a mostly perception-based world.

Shouldn’t there be, then, some other arbitrator in this equation – a power higher than the virtual world provider to resolve how much responsibility, if any, the provider has to its avatar subjects? And if there is a higher power, who regulates him?

Ahem.

Eric Goldman, who bears direct responsibility for the above virtually metaphysical exploration, says (paraphrased) "that’s just life." His take on whether virtual worlds should be regulated:

• no evidence of market failure. Investments still growing rapidly
• We can rely on existing consumer protection laws (such as false advertising) [to] provide substantial protection for any [virtual world] provider deception

If only it were that simple in the real world.        

The highest priced phrase, “mesothelioma treatment options,” commands a bid of $69.10, according to CyberWyre. Such a bid would not be possible unless the competition were willing to pay and edge out the competition.

There are plenty of reasons why people are looking forward to Google’s third quarter financial announcement, aside from analyst estimates of earnings per share that are about 50 cents higher than Google’s second quarter numbers.

Lawyers were the little losers when Adam Liptak at the New York Times settled in to research the issue:

Professor Childs, who has written about advertising by lawyers on Google on his TortsProf blog, lawprofessors.typepad.com/tortsprof, said he sometimes typed in Web site addresses rather than clicking on sponsored links when doing his research.

“It feels a little weird to cost them 50 bucks to satisfy my curiosity,” he said.

That had not occurred to me. In working on this column, I looked at a bunch of lawyers’ Web sites, at a cumulative cost to them of, oh, $1,000. Sorry.

That meant a $1,000 chunk of change dropped into the revenue stream for Google, based on that traffic, a few curious clicks from a reporter, unless Google were to filter those clicks out of the stream and not charge their lawyerly clients.

 Someday there will be hundreds of reversals as domains taken wrongly from domainers that were not actually violating a trademark.

Then we have a separate issue as it is Google and Yahoo that actually traffic and make all this profitable whether right or wrong, violation or not. There are a lot of moving parts to all this and not everything is obvious. There are nuances that can be legally exploited. The thinking has yet to catch up with the technology. Some of the issues are so gray that one could argue on either side for or against. This panel will let it all hang out. A heated debate from all sides will be the result.”

Jeremiah Johnston COO & General Councel Sedo,
Steve Sturgeon Esq. CEO Sturgeon Law Group
Ari GoldBerger Esq. of EsqWire.com.
Paul Keating, Esq.of Renova Ltd
Dr. John BerryHill Esq. of JohnBerryhill.com
Phil Corwin Partner Butera & Andrews…Lobbyist for the ICA

The expansion of trademark laws
Trademarks are issues we have to deal with. When the US was founded, there were no trademark laws. Over time, others were using others’ corporate name and the concept of fraud came into the picture. Lawmakers can establish monopolies for good reasons.
Trademark remedies:
Injunction
Damages susteained by plaintiff
Treble damages

Domain name laws:
Trademark infringement
Icann domain name dispute policies
Anticybersquatting consumer protection act of 1999

Plaintiff chooses arbitration organicstion. Arbitration organicastion chooses arbitrators. Is that fair? What is next? The panelists that are on the panels that favor the domainers don’t get on the panels.

Anticybersquatting consumer protection act

The trademark owner will sue you in a remote court.
New abuses:
Domainer purchases domain name
Plaintiff offers to buy domain name
Domainer does not want to sell
Plaintiff files for trademark
Plaintiff initiates UDRP
Plaintiff loses UDRP
Plaintiff sues in federal court for $$$$$

There are many USPTO registered trademarks (for example, UPS has the trademark for Brown.). There are state registered trademarks, foreign country registered trademarks.

Cybersquatting claims are a vicious weapon.
How can you protect yourself? Anticipate problems, evaluate which could want your domain name. use your domain in safe ways. Beware of offers, which are often disguised to get you to say something that’s incriminating that they’ll use against you in federal court. You can be sued, you can be overwhelmed, your domain name can be taken away from you.

Dr. John BerryHill Esq. of JohnBerryhill.com
Word Mark Bully
Mops and floor brushes is one bully. Another bully is lawn mowers, namely walk-behind lawn mowers and ride-on lawn mowers of less then 12 horsepower.

There lots of things in the USPTO database. Just because there’s an entry that’s in the database doesn’t mean that there’s a trademark on the name. There’s an impression that the domain registerants that are exploiting the domain names. For a search engine to return results or alternatives, that’s not trademark infringement. It’s not trademark infringement in the real world to put like products near other products on the shelf.

Look out for magazine trademarks like golf, money, people, etc. Magazine owners tend to push around domainers.

Phil Corwin Partner Butera & Andrews…Lobbyist for the ICA
Trademark lawyers have discovered domains as a growth industry. They’re looking for new business and grossly exaggerating trademark infringement. Unlike patent and copyright law, trademark laws are based on protecting the consumer by protecting the consumer from buying something from someone other than the trademark owner.

They claim that $6 billion dollars of counterfeit goods were bought online last year because of cybersquatting. That’s just not possible. They claim that cybersquatting contributes to more phishing. They claim a connection between domain tasting and phishing and there’s just not any correlation between the two of them.

Trademark owners are trying to prove statutory damages.

Google sells ads against trademarks. Courts are saying that it’s okay.

Explaining internet issues to politicians isn’t easy. But they understand domain names. They understand buying ads against their competitors (Hillary ads show up when you search Google for Rudy Giuliani).

For protection, if you are the one owner and you individually violating the trademark then you are going to be named in the lawsuit. If you set up an organization that owns the domain name then that entity will be named in a lawsuit.

The TLD, .com .net and .org etc. does not have anything to do with the trademark. Just because if someone’s operating with a trademarked name, doesn’t mean that they’re operating it legally; they may get challenged at some point. Every situation is different when it comes to trademarks. Every case is different.

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In addition, instead of the standard few words and a checkbox that the user clicks to sign his life away, I noticed that this signup for had even more aggressive language:

I am the authorized user of this computer and I have read, agree to, and have obtained the agreement of all computer users to the terms and conditions of the Privacy Statement and User License Agreement. [emphasis added]

OK, I was going to sign up, but I guess I need to review the terms and conditions with everyone else in the house or office or college campus who might use this PC. Right.

Just about every community has some kind of privacy policy or statement of terms of use when you sign up; from a community building standpoint, there are a few key steps to making this as painless as possible. First, let users who are never going to read the fine print bypass it with a minimum of fuss. Link to the privacy policy rather than forcing everyone to read it; those who are concerned will check it out. Second, if you do have some really important information that affects your signups, don’t bury it in the legalese – make it obvious, and if it’s VERY important, add a checkbox. But keep it simple, like, “I understand that posting obscenities is never acceptable.” Third, make your privacy policy reassuring rather than troubling so that those users who actually DO read it aren’t put off.

Looking around the Sears home page, I noticed a few other community missteps. To begin with, I couldn’t find a link to the My SHC Community site at Sears.com. Maybe it was disguised, but that’s hardly the way to build community critical mass. A later visit did trigger an AJAX popup inviting me to join; even that had some legal-sounding fine print at the bottom. I’m not sure what triggered the popup the second time around, or how many times I’d see it if I returned. While a popup of that type will generate plenty of clicks (and annoy at least a few visitors), Sears needs to accommodate those users who don’t join immediately and might want to later – all that’s needed is a fairly obvious link. As I was searching the home page in vain for the community link, I found not one but three privacy policy links – “California Privacy Rights,” “Privacy Policy (Revised 7/1/04),” and “Children’s Privacy Policy (Revised 7/1/04).” These are in the footer sitewide. Do we really need three separate privacy policy links? Do we need to know that two of these were revised three years ago? These links are in addition to other positive-sounding items like, “Terms of Use,” “License Info,” and “Product Recalls.”

Does Sears want its customers to feel like they need their personal attorney to review the site before surfing it? Every site needs its policies and other legal stateements, but it’s time for the Sears marketers to stand up to the lawyers and restore some balance – at the moment, it looks like the lawyers are getting the last word on everything.

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“Google is planning to recruit an in-house team across Europe after growing by more than 50 per cent in the last year,” states Malar Velaigam for TheLawyer.com.

Showing both a healthy dose a skepticism and a willingness to report the Google’s statements, Velaigam then continues, “The internet company has been bombarded with lawsuits and regulatory issues, but it claims the need for a new European legal capability is due to ‘rapid growth.’”

Hmph.  A rapid growth in the number of lawsuits it faces, sure.  And many of those suits have been filed overseas, so it makes sense that Google would hire lawyers in Europe (despite facing pressures from the likes of Viacom in the U.S.).

A side note: the term “Europe” is sometimes used when referring to just two, or maybe three, countries.  But in this case, “Google is seeking legal chiefs for Amsterdam, London, Madrid, Milan, Moscow and Zurich,” according to Velaigan, and “[e]xcluding London, which is already home to a number of Google lawyers, this will be the first time the company has any lawyers based in these European cities.”

Well, let’s hope these Google lawyers are the friendly sort, because it looks like they’re spreading out pretty quickly.

About eight business days.

Avvo launched in beta on June 5, coming out of stealth mode, with the stated intention of helping consumers choose better lawyers. The main problem was that there were two main ways of finding an attorney: via recommendation and via the Yellow Pages.

Both versions are fraught with bias, or at the least, lacking in objective information. That’s where Avvo CEO Mark Britton comes in with an algorithmic based, allegedly (you have to use "allegedly" right?) objective rating system.

Before we get into how many of us might have predicted that some lawyer(s) out there wouldn’t be pleased with their rating, and thus might have the inclination and sure-footedness to sue, let’s look at the Top 10 Things I Will Never Ever Do to see where creating a lawyer rating website ranks: 

Top 10 Things I Will Never Ever Do

10. Think rock climbing, running, or math are "fun"
9. Answer the door for two young guys in short sleeve white button-ups
8. Trust Whitey
7. Get a GoldenPalace.com tattoo on my forehead
6. Create a lawyer rating website
5. Put my head in a lion’s mouth
4. Wrestle a crocodile
3. Play leapfrog with a unicorn
2. Invest in a "Prince Albert"
1. Ask a woman if this is her PMS week

Number 6, it looks like, just above putting my head in a lion’s mouth.

My guess is that Britton has attempted at least two of these other bad ideas, most likely out of brazen disregard for his own well-being, and not out of stupidity. In fact, the website seems like it would be a great resource for us clueless consumers in the event that we need (and we all do, eventually) legal services.

So I’m guessing there’s an element of altruism here, if indeed we can use that word and "lawyer" in the same sentence.

Avvo’s rating system is based on a 10-point scale, according to the plaintiffs (John Henry Browne and Alan Wenokur of Hagens Berman Sobol Shapiro):

9.0-10.0  Superb
8.0-8.9    Excellent
7.0-7.9    Very good
6.0-6.9    Good
5.0-5.9    Average
4.0-4.9    Concern
3.0-3.9    Caution
2.0-2.9    Strong caution
1.0-1.9    Extreme caution

Eric Goldman, who teaches Cyberlaw and Intellectual Property at Santa Clara University School of Law, notes this was probably a bad idea:

The distillation of attorneys into a single numerical rating is inherently fraught with peril, and the media has picked up on numerous examples where the ratings are out of sync with common sense.

There could be a number of reasons for this, including insufficient data to make accurate ratings or miscalibrated components of the rating algorithm.

Either way, the numerical ratings look much more like a work-in-progress than a finished product, and I sure hope consumers aren’t actually relying on the numerical ratings….

Goldman continues at his blog about the philosophical and transparency issues, as well as what this means to interactive websites and rankings by search engines.

Plaintiffs say the ranking system is flawed, ranking highly respected veterans below disbarred and even jailed attorneys. They write:

Avvo’s fallible system for rating and promoting attorneys has produced wild discrepancies in ratings rather than the reliable consumer benchmarks for making decisions about legal representation that Avvo claims.

For example, the Dean of Stanford Law School, Larry Kramer (Avvo Rating 5.7 of "Average"), is rated lower than Lynne Stewart, a disbarred New York lawyer who was convicted of conspiracy and providing material support to terrorists, who received a 6.5 or "very good" rating.

The Avvo founder and CEO, Mark Britton, who was been a member of the Washington State Bar for just nine years received an 8 or "Excellent Rating," higher than the Dean Kramer.

Ouch. On the Avvo blog, Britton defends his website saying the plaintiffs are looking to squelch freedom of speech.

Britton writes:

This lawsuit is an effort to censor and to chill Avvo’s analysis, commentary and opinion in order to protect attorneys who have disciplinary actions in their backgrounds. It seems to reflect a belief, on behalf of the lawyers bringing this lawsuit, that the First Amendment doesn’t apply to the dissemination of opinions and information about them.

Whatever the outcome, this Lawyer vs. Lawyer case will be interesting to watch – in the same way "Crocodile Hunter" and "Jackass" were always cringingly fun to suffer through.

NewTeeVee‘s Janko Roettgers notes the difficulty torrent users have finding niche content in a p2p world where mainstream media dominates. Holland-based Tribler has a mission of helping its users locate and share user-generated media, including YouTube.

But the neatest (or spookiest, depending on view of smart technology) function of Tribler keeps track of user downloads, compares them to other users’ downloads, and recommends media based on that history.

And this how the fringe content is introduced into the mainstream.

Tribler’s "P2P infrastructure for user-generated content that also helps with content discovery" has not only attracted a ton of funding, but has also captured the attention Netherlands Public Broadcasting and other European television networks.

Expect to hear more about Tribler (and the BitTorrent clients that arise like it) in the future.

The flap relates to a clip that shows the feet of a woman above the head of Thailand’s King – this is insulting by Thai standards, and things escalated after several other videos compared King Bhumibol Adulyadej to a monkey.  YouTube stood firm, and did not take down the videos.

But now, in addition to the clips, the Thai government is upset over what it sees as unequal treatment.  “Google cited freedom of information as the reason for not exercising censorship here,” complained Thai Minister Sitthichai Pookaiyaudom, according to a TNA report, “but it earlier agreed to censor its website in China since China is a more powerful country.”

Hence the threat of a lawsuit.

The publicity may actually benefit the video-sharing site – it has gained a reputation for caving in to demands (as has its owner, Google).  As for the legal ramifications, YouTube’s lawyers are probably having a good laugh, but the suit is nonetheless going to mean more paperwork for them.

The Washington Post’s Emil Steiner had a good pointer for the Thai government, however.  “Perhaps instead of suing YouTube . . . Thailand might put those same resources toward eradicating the flesh trade within its own boarders.  For while spoofing the king may have insulted a great many people, isn’t the reputation of rampant sexual slavery and underage prostitution far more insulting?”

What should have happened? A licensing deal that doesn’t cost much. Say a buck a year. That way Skype would have been able to shut down bad uses of the Skype trademark, while letting community members who are helping its ecosystem out stay up.

Worst case? Sites like this should be shut down by lawyers when they pop up, not years after they become popular.

Personally? I’ll never start a community site with a trademark in a URL or a name. I know that the danger of getting a lawyer to jump on you is way too high. This isn’t the last time this will happen.

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One of the hot topics was the effective policing of trademarks and how attorneys are having to pick and choose their battles – especially when it comes to web infringement.

Try to go after every violation, they say, and you’ll burn through your budget in minutes flatSearch giant Google is the recurrent demon invoked in most legal discussions involving trademark infringement. AdWords was the original bogeyman, and attorneys have been consistently frustrated by the mostly free pass they believe Google has been handed by U.S. courts allowing the company to sell advertising against trademarked keywords.

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Andy Beal is an internet marketing consultant and considered one of the world’s most respected and interactive search engine marketing experts. Andy has worked with many Fortune 1000 companies such as Motorola, CitiFinancial, Lowes, Alaska Air, DeWALT, NBC and Experian.

You can read his internet marketing blog at Marketing Pilgrim and reach him at andy.beal@gmail.com.