It's rare that I am so taken with an idea that I feel the urge to shout it from the rooftops in both my Tales of the Sausage Factory blog and here. At least I usually try to say something different.
But I am so taken with the latest innovation from Linden Labs that I want to give it as much coverage as possible. Dubbed the “proceed and persevere” letter, it offers an extremely valuable tool for trademark holders who wish to permit specific uses of their mark without the risk of losing control of their rights.
To summarize: a fellow by the name of Darren Barefoot created the one-page parody of the popular Second Life called Get A First Life. Rather than respond with a cease and desist letter, Linden Labs, the creators of Second Life, responded with a comment explaining that they understood the difference between a non-infringing parody and a genuine infringing use:
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.
But the comment did not stop there. It continued with some genuinely revolutionary language:
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.
This language solves a sometimes difficult problem. How can a trademark holder (a) permit a specific use, while (b) not giving a general license or otherwise risk losing control of the trademark in a way that goes beyond the comfort zone of the trademark holder? Because while a trademark holder may wish to authorize a one off, the trademark holder may not wish to authorize some general class of uses (in the way the Creative Commons license does with copyright) and may not wish to give the person using/parodying the mark a free hand to use the mark in other ways.
The problem is complicated because, on the other side, the person parodying the mark may be reluctant to do anything that could call into question their intent. A person using or parodying a mark in a manner that does not infriinge may fear that agreeing to some sort of voluntary licensing agreement might somehow be taken as an admission of guilt, or as a voluntary agreement to use the trademark only in accordance with the terms of the license. So how can parties that want to cooperate in such a circumstance do so?
The license language above strikes me as an eminently sensible approach. Linden Labs grants this extremely limited license unilaterally. They define it as appropriate for their comfort zone. The language requires no act of acceptance on the part of “Darren Barefoot” or any concession from him. For Darren Barefoot's part, he is free to say “That's nice, not that I need your permission, but I'm glad we are not going to sue each other over an obvious joke.”
There is an anlogy here to real property. In the real property world, there is a concept called “Adverse Possession.” If someone comes on my land “openly and notoriously” and starts using it for some length of time as if it were his or her own, then I may lose possession of the land by my failure to act. However, if I say to my neighbor “feel free to come over and use the backyard whenever you want — no need to ask me my permission,” then my neighbor cannot adversely possess the land by using it. Sure, if we have a boundary dispute, we can go to court and resolve the matter via the usual legal recourse. But the fact that my neighbor used the land with my permission is not proof one way or another.
It may be that intellectual property lawyers have been using this kind of lnaguage for years, and I'm getting excited over nothing. But I'd really like to see this possibility for resolving fights over parody popularized and promoted. Creative Commons has done a lot to promote the sharing of knowledge by allowing copyright holders to give away rights to classes of users or disclaim certain rights. The “Proceed and Persevere” letter could likewise become a valuable tool for allowing trademark holders to resolve disputes peacefully, without feeling that they put their rights at risk.