Thursday, August 21, 2008

DMCA Filed Against ~*FBG*~ - We Need Your Help!

This is the hardest thing I have ever had to write, and it is by no means an easy thing to explain. We regret to inform our valued customers that for the time being, the ~*Fresh Baked Goods*~ Jelly Tots Necklace will not be for sale in any of our Shop locations in-world.

Yesterday, when I arrived home from work, I checked my e-mail as I always do, and was absolutely shocked to find a DMCA Notification from Linden Labs that someone has claimed that the ~*FBG*~ Jelly Tots Necklaces, in all metals and color palettes, are copies of their work. The letter informed me that I had just 2 days to respond by removing the items from sale, and that if I wished I could counter-file to the DMCA stating that under no circumstances did we knowingly infringe on anyone’s copyright. If we did not act within that time Linden Labs would remove our items if they still were for sale, and we might possibly face penalties such as having our accounts inactivated.

I immediately contacted my co-desinger on the Jewelry and co-owner Dessert Furst (Dez), and my other Co-Owner and Friend Sugar Babii (Shug) and spoke to them about this e-mail. At first we assumed it must be some sort of fishing e-mail, which maybe did not originate from Linden Labs, and it may be a mistake. We called Linden Labs concierge service by phone, and they confirmed that this e-mail was indeed sent by the “Removals” department at LL.

We fully intend to respond to this by Counter-Filing on the DMCA. We worked tirelessly creating our products, we created them without any reference to any other accessories or jewelry shop in Second Life, and any real world inspirations (which we retain in picture form) merely served as that, inspiration, the limits of the physics of prims in SL as well as our limited but developing skills in building meant that our finished products were almost nothing like the inspirations. We use no textures in this product other then legally purchased metal textures from Royalty Free sites and we were careful to read the restriction on the use of these items, and we are not restricted from using them in derivative works in any way.

So why am I blogging this? Because myself, and all of my Co-Owners in Fresh Baked Goods have small children at home with us, and the ONLY way to Counter-File to a DMCA Infringement Claim is to reveal your Real Name, Address, Phone Number, and email address to the Party that is filing the claim. We are terrified that this issue over a Necklace we sell for $100L, and have in fact sold to less then 100 individual avatars, will put our children and families at risk. We received no IM, no Notecard, No email contact via our Flickr, blogger, or SLX/OnRez accounts about this issue. No individual attempted to contact us FIRST or EVER before filing this claim. We have no idea who this person is, and we have no idea what product they claim we have illegally copied.

This is the Letter we received from Linden Labs:
Linden Lab has received notification from a copyright owner, or its
authorized agent, that you have infringed one or more copyrighted works
in the Second Life environment. The notification identified the
following allegedly infringing work(s):

Description of Work(s):
~*FBG*~ Bright Jelly Tots Necklace Sets
~*FBG*~ Muted Jelly Tots Necklace Sets
~*FBG*~ Greyscale Jelly Tots Necklace Sets

Location of Work(s):
Velvet ( 127,83,23 )
Retrology (150,182,40 )
Floyd ( 94,147,39 )
Ivalde ( 170,167,24 )

Linden Lab respects the rights of both Second Life residents and
copyright owners. In compliance with the Digital Millennium Copyright
Act (“DMCA”), 17 U.S.C. § 512, we ask that you remove or disable access
to the above-identified work(s) from all locations including your
inventory. If you do not do so within two business days, please be aware
that Linden Lab intends to expeditiously remove, or disable access to,
the allegedly infringing work(s).

If you believe that you did not infringe another’s copyright, or that
removal of the above-identified work(s) was by mistake or
misidentification, you may have the work(s) reinstated by submitting a
sworn counter-notification. To be effective, a counter-notification must
be in writing and contain the information identified in our DMCA Policy
under the heading “To File A Counter-Notification,” located at
http://secondlife.com/corporate/dmca.php.

Please be aware that if you submit a counter-notification containing the
required information, Linden Lab will forward your counter-notification,
including your name, address, telephone number, and any other contact
information that you provide, to the copyright claimant. We will also
advise the claimant that we will reinstate the removed work(s) in ten
(10) business days unless we receive notice that the claimant has filed
a court action seeking an order to restrain you from engaging in
infringing activity related to the work(s).

Thank you for your cooperation and assistance in this matter.

Sincerely,


Linden Lab Removal Team


These Are The Necklaces In Question:

~*FBG*~ Bright Jelly Tots Necklace Set
~*FBG*~ Muted Jelly Tots Necklace Set
~*FBG*~ Greyscale Jelly Tots Necklace Set

As you can see, there is no question that this information would be passed on to individual that filed the DMCA. What is sad, is that we have been building this business slowly over the last few months, since April 15th/08, and it was something I did with my friends purely as a hobby, we would sit on Skype and giggle while we worked on moving little prims around, and took pretty pictures, and listed them on SLX and OnRez, and set up our cute little bakery shops. We do not do this for profit, we profit minimally if at all, we do this as a way of fully participating in the Second Life community, by trying our hand at something beyond our normal skill set, by being part of something together. We never wanted to be famous, we don’t really socialize outside of our small group, and we simply wanted to have some fun.

This experience is no longer fun, this accusation of theft (which is what the DMCA is saying in my mind) is hurtful and ungrounded, and now I am being asked to put my children at risk in order to clear my name. I have nothing to hide, I know that I have done nothing wrong, nor have Dez or Shug. We have spend the day scouring the grid trying to discover if anyone even sells similar items. After looking in over 50 shops, we discovered only 3 stores that sold anything even remotely similar to the necklace in question. I have spoken personally with 3 Individuals [Names Removed to Protect These Parties]all talented designers, because they are the only ones I have discovered who sell a similar style of necklace. All three assure me they have not filed this DMCA, and all three are similarly perplexed over the nature of the DMCA process where I must reveal my information to another party, without any idea who the Avatar is, the Shop, or the specific item in question. We all feel that this may be personally motivated, but as I have never had a relationship in SL, have never so much as said a negative word to anyone about anything, and only socialize within my small group of friends, it seems incredibly unlikely.

It feels like we are being bullied. Someone is saying, “we are going to accuse you of this awful thing, and give you 2 days to take down your hard work”. We feel that if we don’t counter-file, we look guilty for not responding, and we can no longer sell our items. We feel if we do counter-file, we are putting our privacy and families at risk, and nothing in this world is worth that, certainly no $100L necklace.

WE NEED YOUR HELP! Can anyone tell us whether or not the person filing the DMCA against us gets our personal information without any question or safeguards by Linden Labs? Can anyone tell us if they have seen another necklace like the ones we are being accused of copying in Second Life? What would you do if you were in our shoes? Does it make sense to respond? If this is a way of being bullied, do we call the bluff and have them take us to court to prove their claim? Is it even possible to claim copyright to a necklace like this, I mean, how many ways can you make a ring linked chain and round bead necklace with the limitations of SL?

Please comment, we will respect your anonymity, or if you wish to contact me in-world you can at any time. Please don’t think we have any issue with the DMCA itself, we believe there needs to be a process by which IP rights are protected in-wolrd. We absolutely abhor the idea of content theft, and absolutely affirm the rights of those who have been wronged to seek justice. We do however believe that the way Linden Labs enforces the DMCA process is incredibly one sided, and though many who are faced with this situation would simply cut and run where guilty, why does someone who has committed no wrong have to have their identity handed over simply to be able to continue to sell the items they have created, and maintain their honor and respect from the SL Community.

~ Sweetie Pye
Co-Owner, ~*Fresh Baked Goods*~

20 comments:

Sweetie Pye said...

Re-posted as Timestamp was incorrect.

Trixi said...
I'm shocked at how many people seem to be spending time pointing fingers at others. Seems like it's the honest people that suffer the most! I'm a huge fan of your jewels & have never seen anything like it in all of SL (& I spend a lot of time shopping). I will keep my eyes open for sure!!

August 20, 2008 10:34 PM

redrubydestiny said...

I am so sorry this has happened.I love your little shops and love the jewlery.I know nothing about the personal information part of the file but I stand behind you,your partners and your jewmery 100%. I have NOT seen anything like this and I shop alot lol.
I wish you all the best of luck and will proudly wear your jewlery no matter what you plan on doing.I would fight it because you know this is your guy's work noone elses.It is pretty shitty for someone to file a claim without even contacting you first.I really hope it all gets worked out and you guys make the best decision for yourselves and family.Hugs!!

Jhuzen Ketsugo said...

Sweetie & Co.

I am shocked and saddened by this, really I can't even imagine how difficult it is for you right now.

I have never seen another necklace like yours, some similar, but certainly not the same. I mean how many ways can you possibly make a necklace with beads on it? I shop, a lot, and I consume the blog feeds daily, sometimes more then once, in all my time reading the feeds and looking at other blogs, I haven't seen a necklace like yours, this just seems so bizarre to me.

They may call me biased because tour first shop was on Retrology, I don't care, you are sweet girls and you deserve the courtesy of someone trying to contact you and present this before going this route. I hope you fight it, becuase we all hear about the people filing the DMCA claims, but we never hear about anyone who has been filed against like this.

It makes me wonder how many other small businesses get this sort of thing filed on them, and decide to just close up shop and disappear rather then face the accuser and possibly lose anonymity, something we all value in SL. We need to stick up for the little guy (or gal) and support them too. The giant mega-brands have the money and resources to fight this sort of thing, but what about the hundreds of others that do it as a hobby and barely make a profit?

I agree with RedRuby, it takes a real coward to just DMCA you without even a word, I think that should be the first step of the process, instead of this thing hitting you upside the head. What if you had been on vacation without e-mail access? 2 days to file against the other party seems like another tactic meant to force you to make decisions under duress, how can you even speak to LL to clarify or seek legal counsel in that time?

I am keeping you in my thoughts, be strong, you have people that will support you in this.

Shir Dryke said...

This is the craziest thing ever. I'm seriously shocked over this. I know there are people who don't doubt when they can dump a load on you so whatever the shady motivations behind this DMCA, that I can believe that is happening. What makes my jaw drop and brain cramp is LL. As Jhuzen said, what if you weren't by your computer for those two days? And what the hell is that that the other party gets your personal information and you don't even know his/her avatar name. This is a moment of such injustice that I'm lacking words. Wonder if they have legal grounds for such unequal treatment and revealing of personal information without your consent?

I wonder if this is some sort of way of business tactics - just DMCA anyone that's even remotely "threatening"? If so, people are even worse then I thought. And I don't hold them in high regard lately anyway.

I wish I could offer a nice solution but there is none that pops into my head. Whatever you do, don't turn around and close your shop. I do wish you all the best in fighting this awful system.

Jonathan Bailey said...

Ok, there's a lot for me to discuss here so I'm going to try and keep this brief.

The first thing I would do in this case is comply with the notice. Even if you file a counter-notice, there is a mandatory 10-14 day waiting period for putback. Comply with the notice and start work on answer.

Next, attempt to get a copy of the original DMCA notice. Linden might decide to redact the personal information from the filer, but you need to know what the original works that they are claiming are infringed are.

The reason is this. Though you assume it was another person in world that filed the notice, it may not have been. Copyright holders have filed notices with LL for images used in world as well as products in world that resemble physical goods.

Learn the nature of this infringement claim and then, if appropriate, file your counter-notice.

I'll gladly help you with this any way I can. If you need assistance, just drop me a line using the contact form on my site.

I'm here to help if I can.

Emilly Orr said...

Having never had a DMCA filed, I can't help with the process, but this does sound on the insane side. Why does only the complainant get your real name, address, and other contact information? Why shouldn't you find out who's complaining as well? Not that I'm comfortable with real-world info traveling *either* way, but still, it seems slightly more 'fair'...if any of this is.

I'll keep on the lookout for similar styles, and tell you if I find any, but honestly--the closest I've ever seen is Earthstones, and she has a completely separate design ethic from yours. She simply also relies on rounder forms.

This is so baffling.

Balerion said...

I'm afraid they will receive your contact information there, to allow them to pursue a lawsuit against you. You're right, unfortunately this does make it a tool someone can use for getting personal information for the purpose of harrassment. On the up side, LL _ought_ to provide their information in turn if you counter-notify, if you wish to pursue some sort of reprimand for their perjuring themselves.

The best you can do, I believe, is to hire a lawyer and use their offices as the contact information.

You may also try contacting LL and asking them why they haven't provided you this information from the original notification:

"Identify in sufficient detail the copyrighted work that you believe has been infringed upon (i.e., describe the work that you own)."

It seems difficult at best to ask someone to deny infringing someone else's copyright if they are not informed of what exactly they're supposed to have infringed. In cases where teams of designers are working together, it's entirely possible that one acted inappropriately without informing the others, etc. (I'm not saying that this is the case here, at all -- I'm just giving an example as to why LL should have let you know what the items in question were.)

If you do counter-notify, make sure they provide you the full, unredacted original notification.

Finally, you may want to contact the U.S. Copyright office via http://www.copyright.gov/help/general-form.html. I've previously had contact with them and they were very prompt and informative concerning DMCA issues. You can ask them about the issue of personal information, whether there's some reasonable-but-affordable way to avoid putting your personal information and instead using a legally-recognized proxy (maybe a public notary as well?), and whether LL ought to have provided you information concerning what you're supposed to have infringed.

Good luck with the situation.

Arabella said...

I really think you are barking up the wrong tree on this. When i first saw the name 'Jelly Tots' i thought of sweets I bought as a child, and thought it worth checking of they are still available. sure enough, Rowntrees still make these sweets. Its my belief you have been DMCA'd over the name of the items, not the design themselves. The name is copyright world wide i believe.

Sweetie Pye said...

@Arabella

I would have thought that possible but for one thing, we have earrings and bracelets also named Jelly Tots. If this was the issue, then would they not have also included those items, which are listed in all the same places and sold side by side? We also sell a fat-pack that includes the necklace, that was not included in the notice from LL either, but I voluntarily took it out of sale becuase I have no wish to proceed in any way that might seem underhanded. I have also started to remove the items from OnRez Listings as well as SLX, in order to follow this through to the letter of the law, the same law that I believe will protect me, my family and my patners when this issue is fully dealt with.

M0lly Dench said...

Hi and support to you all. This seems a trifle extreme. I have no personal knowledge of the process, but recommend that you contact the Content Creators Association in Second Life, who may be able to give you the information you are seeking or some advice on the privacy aspects of the Linden Labs process.
Good luck, and best wishes.

Efemera Bisiani said...

That's just dreadful. I can't help at all, but I do hope for a good outcome for you. Sending positive vibes your way.

Lynx Sautereau said...

re: Arabella's comments

- you cannot have been DMCAed over the name "Jelly Tots." Copyright cannot arise in respect of a phrase that short. "Jelly Tots" is a registered trademark of (I believe) Nestle Rowntree Ltd, but there's nothing to stop you using the phrase "Jelly Tots" on your product as long as:

a) you are not using their registered trademark (for these purposes, the logo "Jelly Tots" which is registered - you're clearly not, and are just using the phrase)
b) you're not using the phrase in respect of the same goods and services for which the mark is registered. as you're selling virtual jewellery not confectionery, there's no problem here.
c) your use of the mark is not harming the original mark's reputation or taking unfair advantage of it. This isn't the case here (to explain why is too long).

So this is definitely a copyright claim in respect of the goods themselves. I'm sorry this is happening to you and there have been some good suggestions about who to contact.

If you don't end up seeking legal advice and seek to answer the DMCA personally then I can perhaps help you. I can't give you legal advice but I can perhaps give you some general advice on how best to rebut it once you know the basis of the claims.

For the moment I think you should concentrate on chasing LL for the information about what the allegedly infringing work is.

- Lynx Sautereau

Anonymous said...

oops - for "allegedly infringing" please substitute "allegedly infringed"

Lynx

Anonymous said...

First I find it hard to believe LL will reveal your name and address without a court order. I had a problem with Paypal with a buyer and they refused to release any information of the buyer with out this court order. Second, get a PO Box if you are worried, they run maybe $20 - $40 a year maybe. Get it in the neighboring city so that way they don't even have your correct city. You can also buy a cheap pay-as-you-go cell phone and use that number if you think this will turn in to a big stink. I wish you luck with all this.

Anonymous said...

Ugh, you know people that don't have the balls to contact you about an issue are really lame. I am also a huge shopper, and haven't come across anything that could be considered an exact replica, although I don't know every single product on the grid.
Basically, from what I understand, anyone can arbitrarily file a DMCA, it's up to the accused to contest it.

Good luck with everything!

-Kalia Meiklejohn

Miriel Enfield said...

I've heard that you can counterfile by proxy -- get a friend or family member to use their name instead. Apparently this is okay if they sign for you and say they're speaking on your behalf. I wouldn't go ahead and do this just based on my comment, but it's something to look into.

Miriel Enfield said...

Oh, yes, and someone is suggesting to me that you use a PO box for your address (if you have one) and a cell phone for your phone number.

Anonymous said...

The claimant will receive a copy of the counter notification you file, in the counter you must accept legal process from the person who filed the claim.

You must provide contact details because the next step after the counter notification is for the claimant to file in court against you to obtain a restraining order.

You need to be aware that by filing a counter notification and submitting to this, should the court find in favour of the plaintiff, you would be liable for their legal costs and possible damages.

Anonymous said...

I have a lot of experience handling DMCA Notices (and is partly why I am posting this anonymously).

I would demand the original DMCA Notice in its entirety in its unaltered form. As an alleged party to the DMCA Notice you have every right to see it in its entirety. US law is built around being able to confront your accuser and to see the evidence against you. I find it legally unethical for Linden Labs to NOT have already provided you with the evidence against you.

Having access to the unaltered original notice is the only way that you can determine any potential legitimacy behind the claim. Linden Labs has no way of determining legitimacy, and, as the service provider, they only have to take the sender at their word.

The good thing for YOU is that DMCA Notices *require* the sender to include a statement swearing under the penalty of perjury that the facts of the notice are true. If this is, in fact, someone trying to mess with you, your recourse can be pretty harsh against the individual -- and it SHOULD be. The DMCA is not here for people to abuse for their own censorship agenda or harrassment.

Anonymous said...

HELLO PLEASE HELP ME,I`M A SKIN DESIGNER AND I JUST RECEIVED THE SAME EMAIL,ALL MY HAPPYNESS HAS VANISHED (AND MY WORK),SHALL I DELETE I MY CREATION AND TO START OVER?WITH A COPYRIGHT SIGN?OR SHALL I SEND THEM THE FAX?I HAVE 2 DAYS ONLY,PLS HELP.