Second Life Raises Novel IP Issues

The adult entertainment industry is responsible for bringing many of the seminal cases that have shaped intellectual property law on the Internet, from Playboy Enterprises Inc. giving rise to the "initial interest confusion" test for trademark infringement, to Perfect 10 shaping the contours of search engine liability. And now a company named Eros LLC is seeking to join their ranks. Second Life is perhaps the most closely observed virtual world in the United States. Eros claims to be one of the most successful merchants doing business within Second Life, selling adult-themed virtual assets. In an Amended Complaint filed at the end of October in the United States District Court for the Middle District of Florida, Eros claims that the named defendant (and unnamed John Does) has been making and selling numerous unauthorized copies of the virtual assets to other Second Life residents in violation of Eros’s exclusive rights under copyright. If this were the "real" world, the Eros lawsuit would be an uneventful case of software piracy and reverse passing off. But this isn’t the "real" world; all of the activities giving rise to this lawsuit occurred in Second Life. As such, its implications are worth noting. The following article by Ben Mulcahy was originally published in TheNational Law Journal.

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