Lawsuit of the Day: Getting Off on Knock-off Virtual Sex Toys
Second Life is a virtual world where people can create avatars and live “second lives” online. Started in 2003, it claims to be the largest such virtual community. The appeal seems to be that it’s just like real life — people “have jobs, purchase land, commit crimes, build homes and careers, make friends, fall in love, have sex, visit museums, and make and spend money” — except in Second Life, your avatar can also do crazy things, like fly, change appearances, and have really nasty sex.
We’re intimately familiar with neither Second Life nor sex toys, but our understanding is that the two go hand in hand. Eros LLC, a virtual sex toy maker, has apparently made a pretty penny selling sex goods in Second Life. But now other Second Life vendors are ripping off its designs and selling knock-offs. Eros’s CEO Kevin Alderman — who goes by Stroker Serpentine in Second Life and built the first in-world sex bed, a digital bed with built-in sex position animations — is filing a class-action suit against Second Life’s creators for enabling this virtual counterfeiting.
Alderman, who has been called “the ‘Hugh Heffner’ of the digital millennium,” wants Second Life to shut down its virtual version of Canal Street (counterfeit central in New York). From MediaPost:
Entrepreneur Kevin Alderman, who sells virtual erotic goods in Second Life, said in court papers that [Second Life creator/owner] Linden Lab allows other virtual marketers to offer knock-offs of his “SexGen” beds and other products.“Eros’s virtual erotic SexGen products sold for use in Second Life have been counterfeited, cloned, and ripped off countless times by a multitude of Second Life residents,” the lawsuit alleges. “The manner in which this has occurred is akin to the knockoff handbags and purses sold near Canal Street in New York City. Some of the bags are stolen, but actual brand-name handbags sold at deep discounts, while many others are knockoffs that merely use the brand-name makers’ designs and trademarks.”
Circuit judge Richard Posner has weighed in on patent infringement of sex toys before, ruling that a company couldn’t patent the glass dildo. But what about virtual sex toy counterfeiting? We’re entering virgin territory here.
Alderman has company in the suit. His fellow plaintiff is Shannon Grei, a designer who sells virtual clothing in Second Life, and has had cheaper virtual brands stealing her styles. They’re seeking class-action status in the lawsuit, which was filed in U.S. District Court in the northern district of California.
The sex toys and clothing may be virtual, but the profits to be made are very real:
Alderman has taken in more than $1 million for selling products like his virtual beds, which go for around $20 to $40, according to his lawyer, Michael Aschenbrener of KamberEdelson.
This is a unique suit. Read the complaint here [PDF]. We warn that it’s not very sexy. The lawsuit is though:
Eric Goldman, director of the High Tech Law Institute at Santa Clara University, said that courts are still figuring out the issues raised by this type of lawsuit. “It’s not an easy case,” he said. “This particular area of law is unsettled.”
Patent IP lawyers, this is your time to shine. Get it on in the comments.
Second Life Sued For Allowing Sale Of Impostor Virtual Goods [MediaPost News]
Complaint [PDF]
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Comments
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Below Above the Law has surpassed U. Penn State as the most tired flame to still fool somebody every time.
THIRED
I refuse to be first.
I am twelve years old and what is this!?!
Oh Hai, I'm Bob Dell. As an idiot, I made a bunch of offers I can no longer honor. Here's $45,000 in exchange for your legal career. We're about even steven now aren't we.
Is this a virtual lawsuit filed in the Second Life virtual world?
The case has virtually no merit.
When I was in high school, all my friends and I had virtual sex. It was no big deal.
Former Thelen and current Orrick partner The Glass Cock here, advising Kash that she should not use the Glass Cock's name in vain.
Sex...awesome.
9
we should hang out.
- Bob Dell and Dave Gordon
THE STUFF ON CANAL STREET IS COUNTERFEIT?
The second life should start courts in virtual reality. Then the attorneys could also argue the cases in virtual reality. Seems to me like Federal Judge has no personal jurisdiction over goods in virtual reality!
Wow. Just the other day Lat mentioned that he's never seem a woman's vagina in real life. Now, Kash mentions that she's not intimately familiar with sex toys. Both of you simply don't know what you're missing.
WTF? MYSTTTAL: Get in on in the comments.
YOU DUMB -- Wait, what do you mean this is a Kash post? Well, carry on then.
dil·do also dil·doe (dĭl'dō)
n. pl. dil·dos also dil·does
An object having the shape and often the appearance of an erect penis, used in sexual stimulation.
Lester Freeman:
In Second Life, I'm a real cop who do real cop work instead of taking orders and messing up case. Now, if I find a good Prosecutor and Judge who can help me with my illegal wire-taps on the Stanfield organization...I will have a slam drunk case. Got go just intercepted Chris and Snoop on the wire discussing the the next re-up.
This article is going to get a bunch of snarky comments but theft of virtual goods is a real crime and it occurs countless times per day. I've sold digital goods over the net many times and I've been scammed many times. It is difficult enough to explain it to a friend when you are bitching about some kid stealing $500 from you over the Internet, I can only imagine how difficult a time this guy is going to have in court. The legal system is about as tech savvy as my grandmother.
Wait, this guy made over $1 mil for selling nothing tangible, and I barely scratch $100 k for busting my butt on doc review for 60 hrs/week? I'm going to go jump out a window......
Ridiculous lawsuits make me a saaad panda. :(
You're an idiot if you expect any virtual goods to get any IP protection...other than the virtual kind. Maybe a copyright, but most of this stuff isn't exactly new. It's simply copied from the non-virtual world.
Be happy you got to make $1 million off some lonely fools willing to pay real money to enhance their pathetic virual online sexual encounters.
"Patent lawyers, this is your time to shine."
Not quite. Turns out, there's no patent issues involved in the case. The complaint only alleges trademark/copyright infringement. For any real patent lawyer, the nuances of copyright and trademark law have long been forgotten.
I love huge virtual ( . )( . )
Kash, no one believes that you're not intimately familiar with sex toys.
How is this all that difficult or new and confusing? Copyright and trademark law has been applied to computer software for decades now. Isn't the main question whether trademark law is applicable here because it hasn't been determined whether computer graphics without any physical tangible existence can be considered "goods in commerce"? And hasn't this lawsuit been going on for a few years now?
Dear Second Lifers,
Get a first life.
"Patent lawyers, this is your time to shine."
Except that if you actually read the complaint, you would learn that all of the claims are for trademark infringement, copyright infringement, and California unfair business practices. Patents do not make an appearance.
First, even in the real world, enforcing against fashion copying is a problem. http://www.npr.org/templates/story/story.php?storyId=1434815. But copyright does not extend to real clothing because it is a useful article. That applies to the bed too.
In the virtual world, it is probably not a useful article. Therefore, the principal barrier in the physical world does not exist.
I am sure someone who knows copyright better than me can get into more issues.
Kash,
No toys? What about me?
- The Lobster
We actually discussed this case in Posner's class.
Well... nah.
"entering virgin territory here"
Nice job slipping that one in, Kash.
Hold on. This Serpentine person sells, and collects United States Dollars for “virtual erotic goods” that he hawks in a virtual world?
This has be good for at least for an honorary PHD from the Harvard Business School.
I'd like Kasto be my virtual sex doll. The second-year down the hall ain't doing it for me anymore.
"We’re neither intimately familiar with Second Life nor sex toys, but our understanding is that the two go hand in hand."
I think you want the "neither" after "familiar", or it says that you are not a sex toy. I guess that's true too.
I hate myself.
Dear 28:
Computer code is copywriteable.
And what “virtual erotic goods" except computer code?
i want a frontal pic of the one you got on here- she looks virtual hawt
I am clerking for the Supreme Court of Second Life . . . prestige you just can't buy.
-Pop Bottles
36, I think if you get down to whether or not they copied the code itself it's trickier. How do you prove they copied the specific code? You have to prove access as well as first existence. Worse yet, what if they didn't copy? What if they used a different code that they came up with all on their own to make something that looks the same? We don't know what the code in question looks like -- they could be two different codes that make the goods look similar, but interact in different ways with the virtual world. It's almost like there are two levels of possible copyright violation here -- the appearance of the virtual good itself, and the code needed to create it.
I can't think of a good real-world analogy...
Second Life Law is prestige! I hear Princeton Law School is located there!
i am a patent attorney, what's a sex life?
Of course, it's company policy never to imply ownership. In the event of a dildo, we have to use the indefinite article "a" dildo, never "your" dildo.
"We’re neither intimately familiar with Second Life nor sex toys."
YOU LIE!
The fact that Kash had to add the parenthetical after Canal Street inexplicably chaps my fat ass.
"We're intimately familiar with neither Second Life nor sex toys"
Kash, I can help you with the latter problem.
Is there a kash in 2nd world? Bet the one in the 1st world is kinkier--n'est-ce pas?
Patent Attorney,
Having a sex life is when you are gettin it on with someone who loves you.
This is true whether it is 1982 or 2009.
Time, destiny, money, present the logistical challenges.