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Lawsuit May Bring Reality To Virtual Community
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Published: July 15, 2007
Updated: 07/14/2007 11:44 pm
TAMPA - Can what happens between made-up characters in virtual reality have real-world, legal consequences?
That's the intriguing question raised by a lawsuit filed by a Lutz man whose company makes and markets a virtual sex toy in an online, three-dimensional community of more than 7 million residents, and where more than $1 million in transactions takes place every day.
The case is reverberating across the Internet and catching the attention of lawyers and computer users around the world. At least one legal expert says the outcome could affect a wide range of Internet commerce, from online news sites to sales of movies and music.
Thought to be the first real-world lawsuit between characters in virtual reality, the case pits entrepreneur Kevin Alderman, who uses the online persona - or avatar - called 'Stroker Serpentine,' against a character who goes by 'Volkov Catteneo' and whose real identity and location are unknown.
Alderman alleges in his federal lawsuit that Volkov Catteneo has copied and sold a virtual toy called a 'Sex Gen' made by Alderman's company, Eros, and marketed within the three-dimensional, online community known as Second Life. The device, Alderman says, manipulates Second Life characters into various sexual actions. A former plumbing contractor, Alderman says Eros has 12 employees earning a real living making and selling products in Second Life.
A federal judge in Tampa has approved subpoenas requiring Linden Labs, the company behind Second Life, and PayPal to surrender records that will show Volkov Catteneo's real name and address.
'An Insanely Fun Area Of Law'
Tampa lawyer Brent C.J. Britton has been predicting for more than a decade that a lawsuit like this would happen.
He said he wrote a law school paper back in 1993 on whether a trademark could be infringed in virtual reality.
'People looked at me funny,' he said. 'Fifteen years later, we finally come away to my way of thinking. It's an insanely fun area of law. It's never been tested.'
Britton added, 'This is a case of first impression, meaning these specific facts don't appear to have ever been litigated. That automatically makes it special.'
Britton said he thinks the courts will find in Alderman's favor. 'There doesn't seem to be much of an argument against a finding of infringement, so it's unlikely the case would be decided wrongly, in my opinion,' he said.
Britton said he thinks it would be wrong for a court to suggest that a claim is not viable because the events happened in virtual reality.
A ruling like that, he said, 'would imperil the successful assertion and ownership of intellectual property rights everywhere online.' That would include, he said, Web sites, digital music and movies.
'There are those who believe very strongly that all information, digital and otherwise, should be free,' Britton said. 'The fact remains that ethically, just because you can do something with ease, doesn't mean you may. It's always baffled me that there are people who would never dream of breaking into my house and stealing my CD collection but who don't see a problem with downloading digital music with abandon and not paying for it.'
But New York lawyer Andy Langsam, who specializes in intellectual property, said virtual reality is different from real life, and a grievance over activities in Second Life doesn't belong in real courts.
Langsam recently debated Alderman's attorney on CNBC, arguing that it's not fair to impose legal consequences to what amounts to fantasy play.
'I think when people go on to fantasy Web sites, they do so with certain expectations and understandings,' Langsam said in a telephone interview. 'And Linden Labs encourages people to go on their Web sites to play out fantasies to maybe adopt a different persona than you are in real life. If you're a normal, law-abiding person, maybe you want to go as a Harley-Davidson tough guy and ride motorcycles and violate speeding laws. You can do whatever you want on the virtual Web site without liability or guilt.
'You're playing. You might want to be in Second Life, instead of a reporter, a tennis player or a trombonist or a sex maniac,' Langsam said. 'I think it's inappropriate and unfair for someone to sign on to a fantasy world, to snare that person into a real court.'
Products Tested On Second Life
Philadelphia attorney Frank Taney, who's representing Alderman, said that while the case has a 'weirdness factor,' he thinks the legal issues are pretty straightforward.
Taney said what's at stake is really no more than the illegal copying and selling of computer software online, something the courts have been dealing with for some time now. Taney said federal courts should have no trouble ruling that it's possible to infringe on a trademark and copyright within a virtual reality world.
'There are hundreds of cases by now dealing with Internet activity in the context of Internet copying and misuse as being actionable,' he said.
Although Alderman's product is a 'virtual item,' Taney noted that it 'consists of computer code and graphics. ... That's copyrightable.'
Taney said a lot more goes on in Second Life than sex play. For example, he said, there is about $1.5 million a day in commerce.
That cyber economy is possible, Taney and Britton said, because Second Life gives intellectual property rights to those who create items within the platform.
Taney said companies are test-marketing products and services in Second Life. Churches conduct services there, Reuters has a newsroom there and real-world universities have classes there.
'One of the main potentials of this thing is just bringing together geographically dispersed groups with common interests,' he said.
For example, sports fans can meet with other like-minded fans. They can belly up to a virtual sports bar and chat about their favorite teams.
Britton said the Second Life world is real and imaginary.
'When you go there, you are at once decoupled,' he said. 'Your activities in this place are decoupled from your real world, physical existence. You are projecting part of yourself and part of your identity into a new dimension, in a manner of speaking. And yet it's not entirely insubstantial because, as this case demonstrates, real business can be conducted there and real harms can be visited on you. So it's not entirely accurate to say it's not a real place.'
Reporter Elaine Silvestrini can be reached at (813) 259-7837 or esilvestrini@tampatrib.com.
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