Linden Labs Sued in Copyright Infringement Litigation Over Second Life Virtual Sex Toys

Linden Labs, developer of the widely known Second Life massively multiplayer online game, is sued in federal court in San Francisco for copyright infringement, trademark infringement, tortious interference with business relations, and false advertising and unfair competition under the California business and professions code for, it is alleged, turning its head to the widescale creation of counterfeit virtual sex toys with Second Life.  The complaint can be viewed in PDF form here.

Eros, LLC of San Francisco alleges that Linden Labs turns its head while users of Second Life duplicate and sell products that are copies and knock-offs of Eros' in-game content, which are sold under its SexGen mark.  Eros' SexGen product line consists of in-game sex goods, such as sofas, rugs, beds, and even coffins that allow players' in-game avatars to engage in sex acts.

The complaint alleges trademark infringement of the SexGen mark, false designation of origin for the sale of counterfeit SexGen products in its online marketplace, contributory trademark infringement for profiting from and failing to take down trademark infringing materials, and vicarious trademark infringement for the direction and facilitation of direct infringement.  It also alleges copyright infringement for the unauthorized copying of SexGen goods, contributory copyright infringement for knowledge of and a material contribution to others' direct infringement, and vicarious copyright infringement for profiting from and failing to take down directly infringing works.  

As Wired notes, the complaint also alleges that Linden Labs cannot take advantage of the Digital Millennium Copyright Act's (DMCA) safe harbor provisions because it fails to expeditiously take down infringing materials when it is notified through DMCA takedown notices.  In a strange twist, the suit is also attempting to certify a class action to join all similarly situated parties.  The classes consist of copyright owner and copyright infringement classes, all who own copyrighted works and have engaged in commercial transactions on Second Life and all who have had their copyright rights infringed on Second Life, and trademark owner and infringement classes, all who own registered trademarks with the USPTO or who have engaged in commercial transactions with registered trademarks in Second Life, respectively.

This should be an interesting test of how copyright and trademark law applies to virtual worlds that are created through license agreements.  If you are faced with copyright litigation or a trademark infringement lawsuit, or if someone has infringed upon your trademark or copyright rights, please contact an attorney with experience in these areas.