Over at Law.com, Fred von Lohmann of the EFF has an opinion piece on some unfortunate litigation. It's unfortunate because it seems so potentially (but not, as we'll see, actually) intrusive on free speech; so silly; and so excessive. I'm afraid, though, that Mr von Lohmann's opinion piece is in the end as silly as the lawsuit to which he refers.
In an effort to protect its copyrights and trademarks—although largely denigrated by Mr von Lohmann, the latter are actually what are driving the lawsuit—Marvel has sued a couple of "enhanced MUD" operators for facilitating infringement. These particular MUDs (for reasons that escape me, Mr von Lohmann has insisted on distinguishing this particular subspecies as "MMO"s, although for legal purposes there is little if any difference) are "superhero cities," in which an invented city (think Gotham City, or Metropolis) hosts player-created characters. Characters create players from a menu of powers, costumes, and presumably flaws/weaknesses. That is, the players don't choose to "be Wolverine"; they create something as close as the game system allows to "Wolverine" (if that is their desire) and call them what they will.
The rhetorical problem here is the assertion that attempting to suppress this somehow inhibits free speech under the First Amendment, as Mr von Lohmann's unfortunate "parade of horribles" rhetoric implies. Leaving aside the absence of government action and assuming that some nebulous, but not legally protected, abstract right of "free speech" is at issue—frankly, these are fatal to Mr von Lohmann's argument—we need to consider what "free speech" is. "Free speech" is not unlimited. Or, rather, there are consequences to some kinds of speech; consider defamation suits. The core of free speech, though, is the ability to speak about things that matter. That's broader than just "politics," the limit that some would impose; but it does not reach so far as to allow parrotting of another speaker's views while simultaneously claiming credit as the origin of those views. Whether the facts of the matter will ultimately uphold Marvel's action is for the court; but that is the true gravamen of its action.
That should sound a lot more like a trademark claim than a copyright-infringement claim. Mr von Lohmann asserts that there is a necessary element of "commercial activity" to a trademark claim, and that therefore Marvel's trademark claims fail of their own weight. I have not reviewed the complaint; but this is an incorrect statement. First, it assumes that there is no commercial element when the individuals who are allegedly the direct infringers pay the organizations that facilitate the infringement a monthly fee (cf. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996)). Second, it neglects the "dilution" and "disparagement" theories of action under the Lanham Act (federal law governing trademarks)—and the parallel state-level provisions.
The real problem, though, is the unstated assumption about copyright law's reach to characters. If nothing else, this is an excellent argument for consolidating copyright matters in a single circuit—because the law is different in the Second Circuit (Marvel's home) than in the Ninth Circuit (EFF's home), and this case is sitting right on the border of one of those differences. There is no uniform copyright law in the US concerning the protection of characters' basic characteristics. The Ninth Circuit has retreated a loooooooong way from the Maltese Falcon/Krofft theory that held under the 1909 Act and during the early years of the 1976 Act (see, e.g., Mattel v. Walking Mt. Prods.); the Second Circuit has not altered its jurisprudence nearly as much.
The trademark claims are driving this action due to a fundamental difference. Copyright is a "permissive enforcement" statute; that is, failing to deal with potential claim A has no effect on potential claim B when it comes along later. Trademark, however, is a "mandatory enforcement" theory; that is, failing to deal with potential claim A may not just influence potential claim B when it comes along later, but may even result in cancelling the mark. Whether this is good policy is beside the point; just like the speed of light, it's the law. Thus Marvel's reaction.
Or, in reality, overreaction. This could have been solved by granting a no- (or low-) cost license for purported infringements, which would have protected Marvel's marks while not undermining its public stature. This could also have been solved by modifications to the menu system on the MUDs to prevent certain combinations, or to lock out certain names when used with a particular characteristic. That it was not indicates that somebody, somewhere, demonstrated all the maturity of a two-year-old and pitched a fit at the thought of something being taken away—something to which they may not have been entitled anyway. And it only takes one crybaby to torpedo a negotiated agreement.