Fri 02 October 2009 | -- (permalink)

Back in July a Michigan high school student sued Amazon for deleting George Orwell's book 1984 from his Kindle ebook reader, and simultaneously stripping away the context from the digital annotations he had made. This morning I saw in the ABA Journal that the case has now settled. According to the settlement, Amazon has agreed to pay \$150,000 to the plaintiff's law firm, KamberEdelson, which will donate "its portion" of it to charity. (The settlement doesn't say how large the firm's portion is, or how much of it will actually go to the plaintiffs after the other lawyer, Clifford Cantor, gets his share.)

The sight of that law firm name rang a bell. Is KamberEdelson the same firm representing the plaintiffs in the recent class action against Linden Lab for failing to adequately protect their intellectual property in Second Life?

Yes it is.

Not just the same firm, but the same lawyer, Michael Aschenbrener. The Amazon settlement is here. You'll see his name at the bottom. The Second Life complaint is here. (The complaint lists another attorney, Alan Himmelfarb, first, but that's presumably because he lives in California, where the case has been filed. All the news interviews I've seen about the case have been with Aschenbrener.)

Given that it's the same law firm and lawyer in both cases, let's compare and contrast the two cases, add some wild speculation, and make a guess or two about how the Second Life case might end up.

• Size of Defendant:Amazon is much larger than Linden Lab.
• Size of Plaintiff Class:Small in both cases. Though the Amazon class technically included all Kindle owners, not all that many people had purchased the versions of 1984 and Animal Farm at issue in the case. In the SL case, the class has been deliberately whittled down by only including Second Life content creators who have registered their works with US Copyright or Trademark offices. That's very, very few people.
• Economic Harm to Plaintiffs:In the Amazon case, it's humorously small. Amazon voluntarily refunded the purchase price of the ebooks that it pulled from its virtual shelves, so the only harm left to claim was the lost value of the annotations, which were stripped of their context when the book was deleted. Many commentators on the case succumbed to the temptation to summarize the cause of action as Amazon ate my homework. The harms in the SL case are more concrete. It seems pretty likely that the plaintiffs could have sold more of their virtual goods if Linden Lab had built more stringent DRM into Second Life, or if they responded to reports of infringement more vigorously by purging infringing content and banning infringers.
• Strength of Legal Claim:In the Amazon case it was pretty clear that deleting the books was a violation of their own Terms of Service, which state that "Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content" (emphasis added). The Second Life Terms of Service cut the other way, however, explicitly giving Linden Lab a non-exclusive license to use, reproduce, and distribute the content that users create inworld. For that and other reasons that I don't have space for here, the legal claims in the SL case seem much shakier than those in the Amazon case.
• Fee Donation:Unlike in the Amazon case, KamberEdelson has not agreed to donate its fee in the Second Life case to a charity. So perhaps they took the Amazon case to get some publicity, but are taking the Second Life case to actually earn money.
• Public Relations:Amazon's case was a PR disaster. CEO Jeff Bezos apologized profusely for the incident, saying that pulling the books was "was stupid, thoughtless and painfully out of line with our principles." By contrast, comments in various SL blogs and forums show public opinion in the Second Life case to be much more divided. I expect Linden Lab to fight their case much harder than Amazon fought theirs.

My hunch is that the case will settle with Linden Lab promising to pursue content infringers more vigorously, and paying \$200,000-\$500,000 dollars to the plaintiffs. Probably on the lower end.

One last thought: There's a sense in which the plaintiffs in the Second Life case are asking Linden Lab to do the exact thing that got Amazon in trouble. Amazon was notified that some of the works available through its service infringed copyright. It removed those works from the service, including from the inventories of books saved on users' devices. The Second Life case plaintiffs and others frequently complain that Linden Lab isn't diligent enough in removing infringing content inworld, including from the inventories of people who have purchased from the infringers. While the two positions probably aren't so clearly opposed that they'll get KamberEdelson in trouble with judicial estoppel, it's fun to see the firm having jumped to the other side of the issue. If they're successful in getting the Lab to delete more infringing inworld content, how long until we see a new lawsuit saying "Hey you deleted stuff from my inventory. How was I supposed to know it was infringing when I bought it?"