As regular readers may recall, I have had sharp words for those who can’t tell the difference between MMORGs such as “Second Life” and reality. Nor do I stand alone. Industry Reporter Clay Shirky over at Corante wrote this article a few weeks ago describing how the business press generally appears to have fallen into some sort of Second Life worshipping trance. So it may surprise some to see me lauding Linden Labs’ latest innovation as a fantastic contribution with the potential to make the real world a better place and teach those who need it a valuable lesson in life.
I refer to what the always clever folks at Good Morning Silicon Valley dubbed a “proceed and persevere” letter (the opposite of the “cease and desist” letter). What happened, and why I hope it catches on, below . . . .
When Darren Barefoot created the one-page parody site Get A First Life, he included a link for “comments and cease and desist letters.” While probably not genuinely expecting any such, the invitation to post a cease and desist letter is one of these wry asides that highlights how common it has become for the IP Mafia to blaze away with a C&D even where everyone agrees there is no real claim of infringement.
Enter the good folks at Linden Labs. They posted a response declining the “invitation” to send a cease and desist letter. As the Linden Labs folks wrote:
We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com/ constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.
Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.
In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.
This alone marks a significant step forward and a valuable lesson for the IP Mafia. Those who believe (or at least repeat) the old canard that copyright and trademark trolls act so aggressively because the law requires them to vigorously protect themselves lest they lose control of their “intellectual property” should sit up and take heed. Linden Labs came in, made it clear that they do not give the world free use of their trademarks and copyrights, but did not act like an IP Mafia hit squad taking down a target in some Mario Puzo parody.
But, as the saying goes, there’s more! What makes Linden Labs response truly revolutionary and valuable comes immediately afterward:
Notwithstanding the foregoing, it is possible that your use of the modified eye-in-hand logo for Second Life, even as parody, requires license from Linden Lab, especially with respect to your sale of goods with the parody mark at http://www.cafepress.com/getafirstlife/. Linden Lab hereby grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo (as displayed on http://www.getafirstlife.com/ as of January 21, 2007) to identify only your goods and/or services that are sold at http://www.cafepress.com/getafirstlife/. This license may be modified, addended, or revoked at any time by Linden Lab in its sole discretion.
It is this feature that creates a genuinely new thing: the “proceed and persevere” letter. It provides a legal means for a rights holder to share a trademark in a way that fosters a specific use. Far more targeted than the Creative Commons licenses (which provide copyright holders with ways to offer broad licenses to the public), it provides a useful means for avoiding needless lawsuits or arguments about whether a use infringes. A trademark holder can look at specific uses and say “I can protect myself and allow the use to go forward at the same time, without getting into a fight about whether the use is genuinely infringing or not.” And, from the perspective of the licensee, it requires no admission that, absent the license, the use infringes the trademark. Each party can happily get on with life (First or Second), and only come to litigation if they have a genuine disagreement.
I have no doubt that other lawyers have come up with their own equivalents over the years. But I also remember from private practice the issues that come up even when parties want to find a way to cooperate. So I sincerely hope that folks will popularize the general language of the proceed and persevere letter and, in open source fashion, will continue to play with it, tweak it, and release various versions to the public. Anyone want to start the “Proceed and Persevere” website?
Stay tuned . . . .