Court Axes More Claims|From Second Life Seller

(CN) - A company that makes virtual horses in the online world known as Second Life must drop several claims from its copyright suit against a competitor specializing in virtual bunnies, a federal judge in San Francisco ruled.

This is the second ruling to pare down Amaretto Ranch Breedables' lawsuit against Ozimals. Both companies make virtual animals and virtual accessories they sell in a virtual store in the three-dimensional virtual world Second Life.

Ozimals, based in Alabama, sent a cease-and-desist letter to Amaretto in November 2010, claiming Amaretto infringed on Ozimals copyright by creating horses that were a "virtual clone" of Ozimals' bunnies.

By the next month, Second Life creator Linden Research received Ozimals' takedown notification against Amaretto under the Digital Millennium Copyright Act. Linden Research is not a party to the action.

Since the takedown notification sought to remove Amaretto's virtual food and water, the Moreno Valley, Calif.-based company's virtual horses would have died of starvation or thirst within 72 hours.

Amaretto filed suit and won a temporary injunction on Dec. 21, but U.S. District Judge Charles Breyer dismissed two claims from Amaretto's amended complaint on April 22, since the "takedown" had not actually occurred.

In a new order on July 8, Breyer said Amaretto's claim for unfair competition under common law could not survive because the company did not claim that defendants "passed off their goods as those of another" or "exploit[ed] trade names or trademarks."

Breyer also found that the federal Digital Millennium Copyright Act pre-empts Amaretto's state-law claims "because DMCA Takedown Notifications are a creature of federal law, and there is a specific federal remedy for their misuse."

The judge dismissed Amaretto's interference with contract claim, and any other state-law claim related to the takedown notifications.

He rejected Ozimals' attempt to dismiss an unfair-competition claim, however, finding that Amaretto had "properly pleaded" the count.

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