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Behind the Anshe Chung DMCA complaint

After a digital attack on the "Second Life" land baroness, her husband, Guntram Graef, filed, then withdrew, the complaint. He explains why.

In December, Second Life land baroness Anshe Chung, the avatar of a Chinese businesswoman named Ailin Graef, gave an interview to CNET News.com inside the virtual world.

As has been widely reported, that interview, which took place in front of a packed house in CNET Networks' Second Life theater, was sabotaged by a group of "griefers" who attacked Anshe Chung with a 15-minute digital barrage of flying penises and doctored pornographic images.

Shortly afterward, a video of the entire attack, set to a pop music soundtrack, appeared on video-sharing site YouTube, and subsequent articles in The Sydney Morning Herald and on the tech culture blog Boing Boing contained screenshots culled from the video.

Outraged by the video and the collection of images used in the news reports--which spread quickly across the Internet--Ailin Graef's husband and business partner, Guntram Graef, fired off a Digital Millennium Copyright Act complaint to YouTube, which pulled the video, citing a "copyright infringement" violation.

In the DMCA complaint, the Graefs argued that because Second Life users own the content they create, the video and the photographs used Anshe Chung's image without permission.

But while YouTube acted quickly, legal experts argued that use of the images in the media was protected by fair use doctrine, and that attempts to make the video and photos go away were tantamount to a chill on media freedoms. The DMCA, signed into law in 1998, is intended to extend copyright protection to material published on the Internet.

Late last week, YouTube recast its rationale for deleting the offending video, ," even as the service, as well as Google Video. YouTube did not elaborate.

Now, for the first time, Guntram Graef has talked about why he filed the DMCA complaint in the first place and why he eventually repudiated that claim.

In an exclusive interview held in Anshe Chung Studios' new Second Life furniture emporium, Graef explained his reasoning behind those issues and more.

Q: How would you like to start?
Guntram Graef: I think there have been a lot of misperceptions and misunderstandings.

How so?
Graef: First of all I would like to make it clear that I regret filing DMCA claims in this case, because the real issue at hand wasn't at all about copyright. I didn't realize that some people would misunderstand this as a censorship attempt, which it definitely was not. What got lost in the whole coverage of the issue was that initially I had contacted all parties involved and tried to engage them in a dialogue about the inappropriateness of the graphical material they distributed.

The video and pictures are clearly defaming and constitute a sexual assault. What has never been a question was the free flow of information. I think everybody at Anshe Chung Studios believes in how important it is that the press can report on events and facts without censorship. This does not mean that it is appropriate to distribute pornographic material that people created to harm a woman.

If the effort it takes to file repeated claims is greater than the effort to create an account and repost a video, then certainly something is flawed.

How are they defaming? Isn't it just parody? Bad taste, but parody nonetheless?
Graef: I think what many people in the U.S. and Australia have not been aware of is that Ailin is Chinese, and showing photos of her that have been manipulated into hugging huge penises and stuff like that is quite devastating in this culture. But even according to American standards, I think imagery that shows penises forced onto a woman is a gross sexual assault and by far not a parody.

I can appreciate that, but because Anshe Chung is a public figure, the fact that the event happened made it a news event. And the images--at least on Boing Boing and The Sydney Morning Herald--were depictions of a news event.
Graef: I agree. This is why we never tried to hinder news outlets reporting on the event. However, this does not mean that you have to distribute the pornographic images produced by the attackers. Boing Boing and The Sydney Morning Herald used material that the attackers created themselves. The whole event only had the purpose to produce graphical material and distribute it on the Internet to harm Ailin.

(I feel) some media outlets allowed themselves to be (used) for that. But even if you assume that they did not break any laws in Australia, the U.S., Germany or China, it is still very unnecessary and tasteless and discredits the Western media and the whole concept of freedom of speech in many parts of the world.

Explain what happened with YouTube.
Graef: When I first noticed the video, I searched for a way to notify them about the abusive and inappropriate nature of the material. I wasn't able to locate any forms, phone numbers or e-mail addresses for that purpose. The only thing readily available was the DMCA complaint form. I submitted a complaint that way, but it wasn't a DMCA complaint. I stated it was a personal attack, sexual in nature, and an infringement on a woman's human rights. It wasn't a copyright claim.

A few days later I received a response that only confronted me with starting a DMCA claim or not continuing. Only then did I actually begin thinking about copyright...So I made a copyright violation claim but also repeated my original concerns. Later, as soon as I learned about the (censorship) questions this raised, I immediately withdrew that DMCA claim and told YouTube that I didn't want to uphold that claim, but that I wanted them to review the video based on my original concerns.

Were you corresponding with an individual, or through some sort of form system?
Graef: I corresponded with their support team, it appears. A ticketing system with several individuals handling tickets/e-mails.

At that point, they said they would re-evaluate the video based on your original concerns?
Graef: Yes, that is what they replied then.

Did they tell you precisely what the violation was?
Graef: I realize I was taking it down the wrong path when making it a copyright issue, but my impression at the time was that Corporate America may view Second Life and what happens there strictly as a matter of pixels and textures and I had given up hope that my original concerns that I had raised would ever be taken seriously. I tried to engage into a discussion, also with Boing Boing and The Sydney Morning Herald, based on the paradigm of Second Life being a place where people interact and things happen--an analogy to the real world. But I was ignored when raising the issue of personality rights in that space. I felt like people believed they can do whatever they want because, anyway, they just show pixels and avatars/cartoons in a game. YouTube has not given me feedback about what exactly were the terms of use they saw violated.

Would you say that the dialogue is still continuing between yourself and YouTube, or is it concluded?
Graef: I believe YouTube closed the issue on the original video when they banned it as a terms-of-use violation.

Are you aware that there are now several other copies of the video posted on YouTube, as well as at least two copies on Google Video? And if so, do you expect that those versions will be deleted as well?
Graef: I am aware of that. I am curious to see how Google is going to handle that problem.

My understanding is that each instance of a problem video must be addressed individually. But I'm not 100 percent sure about that, as YouTube has refused to comment to me about this.
Graef: That is certainly not practical. If the effort it takes to file repeated claims is greater than the effort to create an account and repost a video, then certainly something is flawed. Intuitively I would think that YouTube/Google have a responsibility to review a newly posted video and to not admit it if it is similar to a previously banned one.

Do you have a sense of how Anshe Chung will protect herself against future griefing attacks in Second Life public forums? Because, as you know, the griefing continued when the interview moved from the CNET theater to the Anshe Chung Studios space.
Graef: I think only she can answer that. Personally, if I were in her situation, I would avoid appearances in sims that I am not administrator in. It is an interesting aspect. I don't understand why the estate management tools failed there.

Do you feel that perhaps Linden Lab bears some responsibility there for holes in the Second Life client?
Graef: Maybe the griefers used an exploit. My expectation would be that Linden Lab swiftly research that problem and close that loophole. Otherwise it would raise questions about how ready Second Life actually is for professional use.  

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