Sometimes it must seem idyllic to escape from the stresses and strains of this “real world” and take refuge in virtual worlds far from these worldly issues. Unfortunately, the scourge of copyright infringement has arrived in our virtual utopia.

The case which considers this issue is Eros LLC v John Doe (secondlife.reuters.com/media/SDOC1202.pdf), in which Eros, a Second Life Company, is arguing that a Second Life resident under the name “Volkov Catteneo” has infringed copyright in a Second Life program which Eros had written.

Life in Second Life

In Second Life, residents (as the players are known) carry out their everyday lives in a virtual world. They establish their own virtual homes, businesses and territories and make money (both virtual and real) by engaging in commercial transactions with other residents. Thus, I could purchase virtual clothes for my avatar (my online presence); commission someone to paint virtual art which I could hang on the walls of my virtual house; drive a virtual car and attend a virtual lecture. So, when my avatar (clearly an idyllic representation of myself) has finished sitting at my virtual pool surrounded by virtual supermodels and my fleet of virtual Ferraris, it (I?) can relax in my virtual Hawaiian shirt, enjoy a glass of virtual wine and look at virtual art.

After a few virtual drinks with my virtual supermodel friends, inevitably the virtual supermodels will find me irresistible and will endeavour to lead my avatar astray; and it is with this that the first copyright infringement case in Second Life is concerned. In order to understand the case, all that one needs to know is that, with the correct software virtual objects (“widgets”) one can have one’s avatar do almost anything.

Avatars can be dressed in ball gowns or swimwear with piercings and tiny tattoos, and residents with programming and Photoshop skills can reshape themselves into a virtual Tom Cruise or Kate Moss or just about any shape imaginable. Veronica Brown, owner-creator of Simone! Design, is supposedly making at least US$60,000 through selling virtual lingerie and formal wear for avatars of Second Life (see simonefanz.livejournal.com). With a little cash, users can also have people like Eros CEO Kevin Alderman transform their avatars for them. Unburdened by the constraints or reality, avatars can be built with the physique and attributes that the owner wishes. In this dream world, the type of body-shaping done by Alderman’s company Eros is evidently in great demand.

At the Eros virtual storefront in Second Life, shoppers can try out a dragon bed powered by one of his SexGen engines. Along with programmers and designers, Eros employs a sales staff who hang around the virtual shop like real salespeople to pitch the perfect sex toys and Eros is continuously working or creating a more realistic virtual experience.

Eros is engaged in the sale of a number of adult themed virtual objects for use in Second Life, sold under the “SexGen” trademark. The items are sold to residents on the basis that they may not be copied; additionally the virtual objects have been registered at the US Copyright Office. The Eros Sexgen sells for about $45 a unit. Kevin Alderman (known on Second Life as “Stroker Serpentine) sold his plumbing business and now employs 12 people – programmers, developers and sales staff – to help meet demand for the SexGen on Second Life.

Copyright infringement

The action complained that the defendant had made a number of copies of the SexGen virtual objects which he sold as being authorised and legitimate copies. The counterfeit Eros SexGen Platinum Base Unit is said to animate coupled avatars in the same erotic manner as the “real” thing. It is not clear if the virtual avatars provide an accurate representation of real life of if they are faking it – and how would one know.

Evidently the “real” pretend virtual objects have sold thousands of virtual copies at $45 each.

In addition to the copyright infringement case, it is also alleged that Catteneo was using the Eros trade mark to assist in promoting his unauthorised copies.

So there we have it; the Eros case is really just a standard software copyright / trademark infringement case ”¦ or is it. There is no suggestion that Volkov Catteneo ever sold the objects outside Second Life. Indeed, the objects would not function elsewhere. However, this doesn’t matter. Theft is theft wherever it occurs, or so the complaint runs. The fact that nothing “real” exists doesn’t change the basic principle. Both Linden Labs and Paypal were subpoenaed by Eros in order to locate the real (first world) person behind Volkov Catteneo and both have complied. According to various online posts, Eros then sought further subpoenas, which were granted against ISPs AT&T and Charter Communications with a view to ascertaining who might be at the IP addresses which Eros obtained from Linden Labs and PayPal.

The case is presently before the Florida courts and no doubt we will hear more on this subject. At its base, the case is a simple copyright / trademark / passing off issue. However, here the case may, curiously, be easier to establish than it would have been in the real world. Due to IP Addresses and user names, it should be possible to track the infringer and all his/her customers. However, the salient point is that even in a virtual world, there are real laws and real penalties.

David Flint is a partner in the Technology, Media and Communications Group of MacRoberts, where he specialises in internet law issues.

Email df@macroberts.com.