Tuesday, September 26, 2023
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Judge Trims Virtual Seller’s Copyright Claim

SAN FRANCISCO (CN) - A company that that runs a virtual horse store on the Second Life online virtual world can move forward with a pared-down copyright lawsuit against a virtual bunny broker, a real federal judge ruled.

After the Moreno Valley, Calif.-based Amaretto Ranch Breedables began selling virtual horses in the Second Life universe, the Alabama-based Ozimals, which runs a virtual bunny ranch on Second Life, called foul and took to the real world to air its grievance.

Ozimals sent a cease-and-desist letter in November 2010, claiming Amaretto infringed on Ozimals copyright by creating horses that were a "virtual clone" of Ozimals' bunnies. By the next month, Ozimals had asked Linden Research, the creator of Second World, a takedown notification under the Digital Millennium Copyright Act.

Since the takedown notification sought to remove Amaretto's virtual food and water, the company's virtual horses would have died of starvation or thirst within 72 hours. Amaretto won a temporary injunction from the Northern District of California on Dec. 21. In a new April 22 order, U.S. District Judge Charles Breyer said that injunction can stay in effect, but he granted Ozimals' motion to dismiss two claims from Amaretto's amended complaint.

Amaretto had claimed that Ozimals lied to Linden and filed a false takedown notice . But since the takedown never actually occurred, Breyer dismissed Amaretto's misrepresentation claim with prejudice. He also dismissed the tortious interference claim without prejudice, as barred by California's litigation privilege. Amaretto can amend its claim, however, to argue that the takedown notifications fall outside of that doctrine's scope.

Ozimals had not challenged the declaratory judgment cause of action, and the claims for unfair competition and misuse of copyright survived summary judgment.

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