“Unconscionable!” Court Blasts Linden Terms of Service, Holds that Philip can be target in Bragg Lawsuit.
by Urizenus Sklar on 31/05/07 at 12:54 pm
Yesterday the US District Court for the District of Pennsylvania ruled on two motions by Linden Lab in the case of Bragg vs. Linden Research. One motion had to do with removing Philip Linden as a target of Bragg’s lawsuit. The second issue had to do with Linden Lab’s terms of service, which says that any disputes with Linden Lab must go to arbitration. Here is the skinny: Philip *can* be personally targeted, and the ToS is “unconscionable” for a gazillion reasons (We told you so!) — indeed it is unfair in so many ways it is not even fixable by “bluelining”. In other words, this baby is going to court. But beyond this decision, there was the language of the Court, which suggests that not only does the Court understand the issues, but also that Philip is in a great big shitpile of trouble. Following are some choice passages:
p. 14, regarding specific person jurisdiction
Rosedale’s personal role was to “bait the hook” for potential customers to make more interactive contact with Linden by visiting Second Life’s website. Rosedale’s activity was designed to generate additional traffic inside Second Life. He was the hawker sitting outside Second Life’s circus tent, singing the marvels of what was contained inside to entice customers to enter. Once inside Second Life, participants could view virtual property, read additional materials about purchasing virtual property, interact with other avatars who owned virtual property, and, ultimately, purchase virtual property themselves. Significantly, participants could even interact with Rosedale’s avatar on Second Life during town hall meetings that he held on the topic of virtual property.
That may sound harsh, but think about it. Linden Lab is in the position of (i) telling people that the stuff they buy in Second Life is theirs, but (ii) then turning around and seizing the property. The marketing quotes from Philip are damning:
p. 4:
Defendant Rosedale personally joined in efforts to publicize Lindenâs recognition of rights to virtual property. For example, in 2003, Rosedale stated in a press release made available on Second Life’s website that:“Until now, any content created by users for persistent state worlds, such as Everquest or Star Wars Galaxies , has essentially become the property of the company developing and hosting the world. . . . We believe our new policy recognizes the fact that persistent world users are making significant contributions to building these worlds and should be able to both own the content they create and share in the value that is created. The preservation of users’ property rights is a necessary step toward the
emergence of genuinely real online worlds.”Press Release, Linden Lab, Linden Lab Preserves Real World Intellectual Property Rights of Users of its Second Life Online Services (Nov. 14, 2003). After this initial announcement, Rosedale continued to personally hype the ownership of virtual property on Second Life. In an interview in 2004, for example, Rosedale stated: “The idea of land ownership and the ease with which you can own land and do something with it . . . is intoxicating. . . . Land ownership feels important and tangible. It’s a real piece of the future.” Michael Learmonth, Virtual Real Estate Boom Draws Real Dollars, USA Today, June 3, 2004. Rosedale recently gave an extended interview for Inc. magazine, where he appeared on the cover stating, “What you have in Second Life is real and it is yours. It doesn’t belong to us.”
Philip has placed himself in an impossible position on this one. He is arguing that the Terms of Service agreement say the stuff isn’t really Bragg’s, but meanwhile his marketing spiel is off the hook: “It doesn’t belong to us.” Meanwhile the ToS looks like it is going to crumble like a house of cards under legal scruitiny. The Court argued that it was so unfair and such a mess it wasn’t even fixable. Here are some highlights.
p. 28
The TOS are a contract of adhesion. Linden presents the TOS on a take-it-or-leave-it basis. A potential participant can either click “assent” to the TOS, and then gain entrance to Second Life’s virtual world, or refuse assent and be denied access. Linden also clearly has superior bargaining strength over Bragg. Although Bragg is an experienced attorney, who believes he is expert enough to comment on numerous industry standards and the “rights” or participants in virtual worlds, see Pl.s Resp., Ex. A ¶¶ 59-64, he was never presented with an opportunity to use his experience and lawyering skills to negotiate terms different from the TOS that Linden offered. Moreover, there was no “reasonably available market alternatives [to defeat] a claim of adhesiveness.”
p. 30
Linden buried the TOS’s arbitration provision in a 17 lengthy paragraph under the benign heading “GENERAL PROVISIONS.”
p. 33
Here, the TOS contain many of the same elements that made the PayPal user agreement substantively unconscionable for lack of mutuality. The TOS proclaim that “Linden has the right at any time for any reason or no reason to suspend or terminate your Account, terminate this Agreement, and/or refuse any and all current or future use of the Service without notice or liability to you.” TOS ¶ 7.1. Whether or not a customer has breached the Agreement is “determined in Linden’s sole discretion.” Id. Linden also reserves the right to return no money at all based on mere “suspicions of fraud” or other violations of law. Id. Finally, the TOS state that “Linden may amend this Agreement … at any time in its sole discretion by posting the amended Agreement [on its website].” TOS ¶ 1.2.
p. 34
In effect, the TOS provide Linden with a variety of one-sided remedies to resolve disputes, while forcing its customers to arbitrate any disputes with Linden. This is precisely what occurred here. When a dispute arose, Linden exercised its option to use self-help by freezing Bragg’s account, retaining funds that Linden alone determined were subject to dispute, and then telling Bragg that he could resolve the dispute by initiating a costly arbitration process. The TOS expressly authorized Linden to engage in such unilateral conduct. As in Comb, “[f]or all practical purposes, a customer may resolve disputes only after [Linden] has had control of the disputed funds for an indefinite period of time,” and may only resolve those disputes by initiating arbitration. 218 F. Supp. 2d at 1175.Linden’s right to modify the arbitration clause is also significant. “The effect of [Linden's] unilateral right to modify the arbitration clause is that it could . . . craft precisely the sort of asymmetrical arbitration agreement that is prohibited under California law as unconscionable. Net Global Mktg., 2007 U.S. App. LEXIS 674, at *9. This lack of mutuality supports a finding of substantive unconscionability.
p. 40
Here, neither in its briefing nor at oral argument did Linden even attempt to offer evidence that “business realities” justify the one-sidedness of the dispute resolution scheme that the TOS constructs in Linden’s favor.
You can download the entire Court order here:
Download robreno_order.pdf
Inigo Chamerberlin
May 31st, 2007
Interesting stuff Uri.
Well, everyone goes on about LL being a US company and only bound by US law. Now we’ll maybe see precisely what US law thinks of LL?
And, also, this ongoing mess might explain why Philip has kept such an unusually low profile of late? Or been kept low profile…
Kahni Poitier
May 31st, 2007
An interesting read, but MY GOD would you fix the erroneous characters in there. It made it a tad difficult to read smoothly. Cut/paste isn’t always a blessing.
Either way, it’s damned interesting, and I’ll be following this.
Kahni Poitier
May 31st, 2007
And after a refresher reading a bit more on this….
Yes, the TOS needs a re-write, but….
I hope this exploiter loses his shirt.
Cocoanut Koala
May 31st, 2007
As I just got done saying on another forums, paying your fees doesn’t guarantee you land, as a news article said, but guarantees you squat.
What the court doesn’t know is that LL also says it will confiscate your land, goods, and money for speech “violations” on its forums.
coco
Inigo Chamerberlin
May 31st, 2007
I believe it’s a matter now for the Judiciary to decide if Bragg was an ‘exploiter’ or not. That’s really the point here. Can Linden Lab enforce their dubious TOS as they see fit? Or, should such serious matters be dealt with by more formal means?
On another track, I just noticed Ginsu Yoon no longer holds the position of ‘General Counsel’ to Linden Lab, which he did at the start of this affair, he’s now described as ‘Vice President, Business Affairs’. Draw your own conclusions.
Also, rather stupidly, Philip Linden’s profile ‘About’ section still contains the statement ‘Blame it all on me.
’, which I’d personally have removed as a matter of priority some time back.
For a start it doesn’t seem quite so funny now… especially as he’s now trying strenuously to avoid personal liability.
It’s also unlikely to make a good impression on a Judge.
csven
May 31st, 2007
Things just got a whole lot more interesting.
urizenus
May 31st, 2007
I cleaned up the post, so it should be more readable now.
I have to say that I’m always amazed by the Bragg haters, who seem to hate Bragg so much (despite his having done nothing to them) that they want him to lose even though it is in *all* our interests that he win.
Already he has accomplished a lot. Game companies are no longer going to be able to impose onerous terms of service on us. The next step will be if he can get the Court to affirm — as it should — that some of the property seized by the Lindens (without due process) was rightfully his.
I assume the Lindens will try to settle this out of court now, but I hope Bragg does not settle and goes to trial so as to establish a legal precedent.
Lewis Nerd
May 31st, 2007
… watching and following with interest.
Lewis
shockwave yareach
May 31st, 2007
Bragg haters dislike that he took advantage of a bug to gain land without following the same rules as the rest of us. He cheated. He cheated every other person with money in their hands who wanted to make a fair bid for land and couldn’t because he’d already snatched it up. I don’t like seeing people game a system and gain unfair advantage over honest folks who are playing by the rules. But LL had no-one to blame for that loophole but themselves, so they should have just fixed it and dropped the matter.
That being said, if I have to choose between Bragg and Phillip on this, I will go with Bragg. LL can’t have it both ways. Either it IS our property, or it ISN’T our property. Can’t say it’s ours until benevolent dictator decides to take it away from us, particularly without compensation. The holes this opens up for Banning are complicated, since the fear of property-denial will make almost any banning now impossible. LL won’t ban anybody for fear of having to pay for someone’s 24,000L sexbed that the banned user is deprived of. And who knows? Maybe this will finally get the excrement we call an inventory system fixed…
But I’ll bet that the TOS will change to state that everyone only leases land on the servers and leases access to the inventory. And that lease agreement will be cancelable at any time by either party. Easy way for a company to have it both ways again.
Ordinal Malaprop
May 31st, 2007
From all I’ve read of the man I find Bragg completely unsympathetic, and I don’t think much of his actions at all – he sounds like a crook quite frankly and I don’t believe that it is in my interests that he wins the case – but this is certainly an interesting byproduct in terms of precedent, with potential repercussions far beyond Second Life, affirming the legal “reality” of virtual objects.
In fact, in the long term this might actually benefit LL, since people may have a lot more confidence in purchasing and dealing in goods when they know that the law will take them seriously if they have a dispute regarding them.
Inigo Chamerberlin
May 31st, 2007
Uri, I’d have thought if LL were willing to settle they’d have done it by now.
As it is, they are already damaged.
Their big problem now is that Bragg may scent $$$$. He might prefer to turn this into one of those punitive damages cases that seem so common in the ‘states.
Ordinal Malaprop
May 31st, 2007
As an addendum, it does also raise the possibility of people being able to sue other SL residents as well, if you enter into a contract with a land baron who then throws you out, or are scammed out of hundreds of thousands of L$ in some way… or would it be LL who then become liable for failing to prevent it? Will they really start to affirm their common carrier status to avoid such liability, or will they enforce new code-as-law to avoid it coming up in the first place (or hire thousands of Police Lindens)?
Inigo Chamerberlin
May 31st, 2007
They don’t NEED thousands of Police Lindens – not when they have Judge Chadrick Dredd…
urizenus
May 31st, 2007
Ordinal, you make a very good point here:
“In fact, in the long term this might actually benefit LL, since people may have a lot more confidence in purchasing and dealing in goods when they know that the law will take them seriously if they have a dispute regarding them.”
I think that is right. It’s funny that Linden Lab’s legal department is so out of step with reality on this one. It’s certainly clear that they don’t believe a word that Philip has said about Second Life. All they have accomplished is to embarrass Philip and make him look like a scam artist. What they *should* have done is act in a way consistent with Philip’s words. If, as Philip says, it is really our property then the company needs to act accordingly, and not puke out unconscionable contracts of adhesion which attempts to take the property back.
TT
May 31st, 2007
What did Bragg do? Use a bot to buy land?
anon
May 31st, 2007
You still need to fix the curly quotes, in “don’t” for example. They might show up fine on you machine but they sure don’t on mine. Use the proper HTML for curly quotes or just use straight quotes.
Ordinal Malaprop
May 31st, 2007
“What did Bragg do? Use a bot to buy land?”
It’s not entirely clear, but it appears that he found some way of bidding on auctions via the website which weren’t actually yet publicly announced, so got a lot of land quite cheap, which he then sold on very quickly.
Aski Kaurismaski
May 31st, 2007
“It’s not entirely clear, but it appears that he found some way of bidding on auctions via the website which weren’t actually yet publicly announced, so got a lot of land quite cheap, which he then sold on very quickly.”
So he used something far less malicious and far less widespred than the landbots the current greedy landbarons use.
csven
May 31st, 2007
Strictly on memory here:
Early after the shift from parcel to whole sim auctions, Bragg accessed the Linden sim auction system indirectly by plugging in his own URL into his browser. In this way, he (and some others I suspect) placed early sub-minimum bids on sims not yet ready for sale, and bought them at firesale prices.
This simple little trick was revealed on the official forums, and shortly after the Lindens closed the back door. But they also stripped Bragg of his assets *and* the money he paid.
Again, that’s just from memory.
Assuming the forum threads haven’t been deleted (and it seems so many are anymore), you might be able to find it.
urizenus
May 31st, 2007
That’s how I remember it too, csven.
I think its important to keep in mind that the real issue here is not whether the Linden’s were in their rights to seize the assets he got via this trick, but whether they were in their rights to seize his legitimately acquired property as punishment. If this recent court decision is any indication, there is no way this judge is going to side with the Lindens on the latter point.
tp
May 31st, 2007
I’m not familiar with this lawsuit but I do have a couple things to say about it.
1. The way LL markets Second Life they cannot abide by a TOS that reads like a typical MMORPG.
2. Banning people for any reason, even a system exploit should not leave that person shirtless, i.e. ill gotten gains or whatever. LL is basically running it’s own banking system now with no insurance and no guarantee that the money will be there the next day.
3. LL should have never thrown it’s hat into the money creation trading biz. They ruined the economy that was in place with third party entrepreneurs and bit off way more than they can chew in handling disputes involving real world dollars for virtual world assets.
csven
May 31st, 2007
Was just searching the forums. I’d forgotten how the auction numbers were found out in the first place (so they could be plugged into the URL). This is from one forum thread:
http://forums.secondlife.com/showthread.php?t=104100
“When I spoke to a Linden Labs Representative on the phone (before I got hung up on 3 times) I asked the representative to define ‘exploit’ …
She stated that I used a fault in the system to give me an advantage against other players…
This acusation is flatly denied.
.
.
.
Sometimes, when a mistake is made, it’s easy to get lost in the correct actions of other people, based on that mistake.
Actively going to the MAP and looking for land to bid on was not a mistake.
Going to that land, listed as up for auction, and getting the auction number (in About Land) was not a mistake.
Looking that specific auction number up on the website, was not a mistake.
Bidding on that Linden Land auction was not a mistake.
Selling that land was not a mistake.
Using that land for our home was not a mistake.
Other people found those auctions and bid against us which was not a mistake.
…
If I was asked how I got the land listed for $1… I told them … I explained how you research the lands by going to them and finding the auction number… I showed them other auctions that I had no interest in… all information that Linden Labs had made publicly available since before I started playing the game…”
———-
Another person describing what they did:
http://forums.secondlife.com/showthread.php?t=104687
-
Link to post alerting LL (actually, I recall nimrod alerting everyone in another thread, but this is all I can find so maybe I’m mistaken):
http://forums.secondlife.com/showthread.php?t=103999
SqueezeOne Pow
May 31st, 2007
I’ve seen Paypal referred to in a couple articles about this, but there is one difference…Paypal uses REAL MONEY in all transactions where LL uses L$ and decides to cash it out. L$ is not the legal tender of any country and is really just a series of 1′s and 0′s…it takes no physical phone.
I see this going away in appeals if nothing else. He knew he was exploiting the system…you don’t cut and paste different auction numbers into a URL accidentally.
Also, this badly written article failed to explain why Rosedale could be held personally responsible.
Ya had me and ya lost me! On to M2!
Jessica Holyoke
May 31st, 2007
SqueezeOne,
I’m looking at the original state court filing now. Most of the complaint is grounded on Fraud, or deceptive practices. Essentially, Rosedale stated that no one could take your land from you. In Bragg’s case, the Linden’s did take the land and resold it to others with no profit going to Bragg. So that’s one way Rosedale engaged in a deceptive act. The complaint quotes Rosedale in many articles stating that taking of land from you was not possible, that the resident owned the land and his creations. part of the complaint also deals with Bragg having a fireworks creation that he couldn’t access due to his account being blocked. Because his IP rights were appropriated, that’s another way that he was induced. Rosedale said that the resident owns the property, but never said that access could be blocked and your assets seized.
All of that is from the original complaint filed in state court.
Jessica Holyoke
May 31st, 2007
wow, that was poorly written.
Basically, Bragg is stating that Rosedale, through his interview appearances, induced Bragg to spend so much time and money on Second Life due to the ownership capabilities. He would not have done so much with land and his creations if he knew that the Lindens could take everything away from him. Because Rosedale was making the announcements, he is included as a defendant in engaging in deceptive trade practices.
Also, today’s order doesn’t find liability on Rosedale’s part. It only finds that Rosedale may be sued in Pennsylvania Federal Court. Its only specific jurisdiction that was decided in relation to Rosedale.
Prokofy Neva
May 31st, 2007
It’s not about “hating” Bragg, but merely pointing out that he stole land from the Lindens using an exploit. There is no way you can conclude it’s a “mistake”. He plugged in a URL that was a cheat, an exploit that got you into the back door of the auctions to force them to open at a low price. He paid peanuts for something and stole it for far less than it was ordinarily for sale. He had knowledge of this, and did it deliberately, as he was an experienced auction buyer and knew that sims ALWAYS opened at $1000, and for one to suddenly be available for him to open at $0 was wrong.
Anyone who has been on the auction knows this; he knows this. That’s all there is to it. That’s not the point of the case. Bragg may go on bragging that he got away with murder, but we all know exactly what he did.
There’s a narrow point that remains in the case. In confiscating ALL his money and land and virtual goods then, LL overreached. They could reasonably take back land that was stolen, but they couldn’t also confiscate land that was legitimately purchased, as well as inventory and some amount of cash that wasn’t the ill-gotten proceeds from the “hot sims”. And that’s what this case is about, that’s all. Declaring limitations on this company to not get away with confiscating ALL his goods, SOME of which were gotten legitimately.
That’s “in our interests” as Uri says, only because a) it makes land a real good worth something and able to become a subject of a lawsuit and involve possible compensation; b) it places limitations on the overweaning executive powers of LL, which we’re all happy to see.
The “any reason or no reason” stuff that these game companies wield so harshly, and which LL in particular has been infamous for having in their TOS, hasn’t ever really been put to a court of law (it’s not only a feature of LL). At a certain point, a company moves from being merely a private club that can do what it wants under the First Amendment, to becoming a common carrier and a public space of a kind that has more responsibility to protect rights and use due process when they abrogate them.
Your phone company or your cable company can’t decide to dump you because of what you write in the newspaper or because they don’t like your face “for any reason or no reason” — so more and more people would like to see LL get rid of that arbitrariness and behave something like a provider. But then…they’d have to accept that LL won’t be a world and be a club anymore. It won’t have the friendly face in other areas that people want. It won’t be responsible for disseminating and maintaining a culture or rules of the road that people would like in social media. So you can’t really have it both ways.
If Bragg wins, land is made more real and virtuality wins. But like the doctor who has one too many malpractice suits over every little thing that goes wrong in pregnancies, at some point the insurance and the cost of litigation and hiring legal staff and maintaining the status of essentially a telecommunciations company or an ISP with huge demands placed on it then becomes too great. So you could gain your soul but lose the world on this one.
I wholeheartedly accept the notion of Philip as the carnival barker on this one.
Cocoanut: they made that policy to scare people on the old forums, but what good is it? Joshua Nightshade is permabanned from the forums, but then that has no consequences in world. Not that I advocate it should; it’s a draconian policy that should be removed. But it’s illustrative of just how arbitrary and inconsistent they are.
Nicholaz Beresford
May 31st, 2007
A bit unrelated but there are currently still 50 slots open for comments:
http://blog.secondlife.com/2007/05/31/keeping-second-life-safe-together/
humanoid
May 31st, 2007
Knowing to type in a certain URL to access something is hardly an exploit or a cheat. If it is, then every cretin who knows to type in ‘www.tits.com/hooters/gallery_001′ to look at porno pics without paying a membership fee is an OMGL33T hacker.
Nicholaz Beresford
May 31st, 2007
A bit unrelated but there are currently still 50 slots open for comments:
http://blog.secondlife.com/2007/05/31/keeping-second-life-safe-together/
csven
May 31st, 2007
Thanks, Nicholaz, but I commented and it appears to have been flagged.
So what did I post that required LL to “moderate” me? Here it is in full:
“Exactly my thoughts, Lucifer.
Reading about the mess with Six Apart/Live Journal, I can’t help but think this is similar and wonder how many “Warrior of Innocence”-like groups are out there ready to enforce their morality on others.
I think the writing is appearing on the wall, and it’s spelled C-R-O-Q-U-E-T.”
-
Y’know, Linden Lab just doesn’t seem prepared to take the next step: full open source. Not only are they trying to *control* things like never before, they’re doing so while getting the ToS – the heaviest and most blunt of their controlling instruments – disassembled in court.
Aetuneo Novi
May 31st, 2007
Here is what Linden Labs should do: Send Bragg a DVD containing all of the data related to his account (including the land he bought), along with a note explaining that, while the Bytes are his, the servers are Linden’s.
Also, though IANAL, the terms in the SL TOS are extremely similar to the terms in almost every other TOS I have seen which involves a similar service (data being hosted for free (or for money) on remote servers, and ways to interact with that data – which is really all that SL is). If those are all illegal agreements, I sense a very large number of lawsuits that are about to start.
Hiro Pendragon
May 31st, 2007
Bragg’s not looking for money from Linden Lab. Remember, Bragg is a *lawyer*. He’s looking to go down as a “pioneer” of virtual land litigation. If Linden Lab wanted to hurt him, they’d have seen that from the beginning and refunded the cost of his land, then resold that land at fair price and not lost any money in that or legal fees.
Prokofy Neva
Jun 1st, 2007
>Knowing to type in a certain URL to access something is hardly an exploit or a cheat.
No, that’s bullshit. When you can type in a URL and gain a $1000 US product for $0 or $1, that’s theft, pure and simple. It’s not like ogling some porn screenshot, it’s a more serious crime.
Doubledown Tandino
Jun 1st, 2007
I have so many opinions on how this could and should be……
but when I stop and looks at facts, it’s clear as day.
Yes, I’d like to believe SL land, ownership, creation, and individual rights…
..but it’s this simple:
LL made a TOS, we all agree to their rules. No matter how important SL becomes to someone, it’s LLs company, LLs world, LL controls.
LL has servers, we rent from their servers, LL can pull someone’s plug whenever they want.
csven
Jun 1st, 2007
“If those are all illegal agreements, I sense a very large number of lawsuits that are about to start.”
Which explains the intense interest in the MMO community.
-
“He’s looking to go down as a “pioneer” of virtual land litigation.”
Bingo.
-
“When you can type in a URL and gain a $1000 US product for $0 or $1, that’s theft, pure and simple.”
Seems to me to not be so “pure and simple”. If it was, the court wouldn’t just have slammed Linden Lab like they did.
csven
Jun 1st, 2007
“LL has servers, we rent from their servers, LL can pull someone’s plug whenever they want.”
Best Buy agrees.
http://arstechnica.com/news.ars/post/20070524-connecticut-lawsuit-accuses-best-buy-of-bait-and-switch.html
humanoid
Jun 1st, 2007
> No, that’s bullshit. When you can type in a URL and gain a $1000 US product for $0 or $1, > that’s theft, pure and simple. It’s not like ogling some porn screenshot,
You’re wrong on the first part and right on the second. It’s not like ogling a porn screenshot.
It’s like typing in a URL for amazon.com, finding a 21″ TV on sale for $1.00, ordering it, and having it delivered. At that point Amazon could ask for me to return it, or ask me to pay the full price out of the goodness of my heart. But they couldn’t legally force me to return the product.
Bragg typed in a URL, bought something, and LL turned possession over to him because he paid the price their system was configured to accept. Assuming they can’t prove he illegally accessed the system in some way, or signed away alienable rights in the TOS, that’s the end of the story. I assume the latter is what they’ll go for, though it obviously hasn’t worked well for them so far.
Prokofy Neva
Jun 1st, 2007
No, it’s not like “a TV is on sale for $1″ and “you find it”. It’s like “you go to the shelf before the price sticker is put on the TV, and force it to generate a price of $1 to steal it with an exploit”.
Anonymous
Jun 1st, 2007
It’s not just game companies that have TOS like this, some web hosting companies do also.
It’s an area no one has really thought out. Saying “I’m not responsible” at the top of your lungs because you can’t be responsible for *everything* is not thinking it out.
Nacon
Jun 1st, 2007
Either way, the court isn’t drop dead retarded, won’t let Bragg take the cake. However, having the case to go on, should help LL’s TOS agreement much more stand forward with solid firm in the future.
I’d blame on Philip for not hiring a good legal form writer to make the TOS agreement to being with.
marketwatch
Jun 1st, 2007
********
urizenus, you commented:
“I think that is right. It’s funny that Linden Lab’s legal department is so out of step with reality on this one. It’s certainly clear that they don’t believe a word that Philip has said about Second Life. All they have accomplished is to embarrass Philip and make him look like a scam artist. What they *should* have done is act in a way consistent with Philip’s words. If, as Philip says, it is really our property then the company needs to act accordingly, and not puke out unconscionable contracts of adhesion which attempts to take the property back”
********
urizenus, Are you absolutely, positively sure about that? Here is an excerpt from an interview:
****
Q: In a hypothetical way, if I can give you a hypothetical example, if somebody committed fraud by acquiring one property, you under your terms of service agreement, can actually not just claim back that property, you can actually claim all the other properties that that resident might own and what is in his account. Can’t you?
Rosedale: Yes we can. Sure.
Q: Residents..residents have accepted that when they clicked on the ‘I accept’. Didn’t they?
A: Right, right. They do, yeah.
(Philip Rosedale interview)
http://www.abc.net.au/4corners/special_eds/20070319/
****
..Or is it perhaps that, instead, the legal department is actually doing its job to the best of its ability in trying to legally justify what the company and CEO do indeed believe are their prerogatives (as statements like those above would appear to indicate)? What they’ve done appears to be exactly consistent with his words in this case (if we’re to believe that the company genuinely thinks fraud is involved).
It may well be that the CEO is genuinely unaware of what property ownership means legally, and may genuinely believe that taking others’ otherwise lawfully acquired property is somehow in accord with US law. Or the company may not realize that simply declaring something “fraud” doesn’t make it so, or that consumers’ legal rights can be written away in a TOS agreement.
Or, of course, in the worst case scenario from the perspective of consumers, there could be a campaign of deceptive (and illegal) inducement practices as alleged in this case and the two defendants never really meant “property” ownership.
In the same vein that all rights-advocating lawyers aren’t necessarily above ethical lapses (as some people apparently think of Mr Bragg, even though the factual circumstances of cause for his account termination are in direct dispute in this case and as yet not determined by the independent Court), neither are all charismatic CEOs necessarily above lapses of integrity. With this, we’ll now have the opportunity to get a bit closer to the truth of what actually transpired and what the public statements actually meant.
****
By the way, has anyone else noticed that in a 5/17/07 interview, the CEO described buying land as “renting” a processor and buyers really being sold computation, whereas normally one could expect to see the word “own” used?
http://technology.guardian.co.uk/weekly/story/0,,2080906,00.html
janeforyou Barbara
Jun 1st, 2007
Do i as a Island owner ” own” the land or not? Am confused…”It is The Users own and run Secondlife” That was just in the press all over the world in 42 countries wen the primisister of Sweden open there SL Ambassy, Wen i joined SL i read ” Own your own world, create your own fantasy”….wel i did.I hope maybe this case can tell us if we do own it us self or if its just a LL gimmick…Wel i payed for it…and the Lindens told it and tells it,,we own it!
csven
Jun 1st, 2007
“No, it’s not like “a TV is on sale for $1″ and “you find it”. It’s like “you go to the shelf before the price sticker is put on the TV, and force it to generate a price of $1 to steal it with an exploit”.”
Only before you leave the store, you go through checkout.
janeforyou Barbara
Jun 1st, 2007
Hers what Linden Lab Tell you wen you want to get a Isle :
Get Land Now
Find out how to get your hands on your very OWN piece of virtual property.
How to Use Land
How to get the most out of YOUR virtual property.
Or maybe you have visions of a world under YOUR OWN control, where you add land with each increase of your population.
Imagine YOUR OWN island getaway in Second Life!
Ok so i pay for it and its my OWN!If LL want it to be ” not mine” but theres thay need to say it like thisd : ” Pay us 1650 USD as a depositum, pay us 295 USD in tier, wen you leave you get the 1650,- depositum back ” First then thay can say i dont own it! lol….There are laws RL on this.
Prokofy Neva
Jun 1st, 2007
>”No, it’s not like “a TV is on sale for $1″ and “you find it”. It’s like “you go to the shelf before the price sticker is put on the TV, and force it to generate a price of $1 to steal it with an exploit”.”
>Only before you leave the store, you go through checkout.
Yeah, csven, you fucking retarded idiot, we’ve been through this argumentation a million times before on this story. And the checkout in this case is *Linden Lab catching him, removing his land from him, and banning him DUH.* There’s a checkout in THIS story too, DUH.
csven
Jun 1st, 2007
No. Checkout is taking his money and giving him the land.
Catching him came only after nimrod alerted the Lindens.
(btw, you sound tired. You should get some rest.)
NobodyImportant
Jun 1st, 2007
Prokofy, can you make a direct response to someone without insulting them or their intelligence?
It’s beginning to look like you can’t.
Prokofy Neva
Jun 1st, 2007
No, csven, you are a raging asshole, and I know *exactly* what you are up to. I’m not “tired”; I’m full of energy to stick it *right back at you* : )
Linden Lab did not operate their checkout counter, and it was foiled by an exploit. That’s one way to use the analogy, if you must. When someone walks out of the store with a ridiculously low-priced item with the wrong sticker and it’s not caught until later, that’s not a checkout — unless of course it *is* a checkout — as I would maintain–precisely because they DID catch him in the end when they saw their records or got an abuse report.
Furthermore, in this real court of law, with real judges and lawyers, nobody is arguing this insanity, as csven and others are, that no exploit was used. No judge has ruled that hey, using a URL like that is ok because it was just “creative” or “innocent”. The plaintiff himself is not trying to make the issue of his swiping the land with a URL the center of his case, trying to prove that it was “ok”.
No, he’s much smarter than all of his Internet-lawyer apologists, and isn’t jamming on this point, which goes nowhere as any person with common sense and rationality can see an exploit was used.
No, he himself is chosing to focus on another element of the case, which is about a company seizing *all* of his assets, not just these “disputed ones”.
urizenus
Jun 1st, 2007
Prok, relax about csven please, if Joshua or Cristiano show up we want you to have some energy left for a throwdown with them too.
Marketwatch, that quote from Philip is interesting, because it seems totally at odds with the quotes about land ownership cited in the court order. The options here are limited.
1) Philip had no idea what he was talking about when he said land ownership.
2) He knew exactly what he was talking about and was very unethically marketing one thing (land ownership) while not offering it.
3) He honestly believed he was offereing land ownership and that he could take it away at whim and never connected the dots — never saw that he believed P & not-P.
Whichever is the case, I would think it is the responsibility of the legal department to understand that the marketing claims being put forward by Philip were presenting Second Life as offering genuine ownership and also to see that the ToS was grossly unfair — “unconscionable” in the language of the Court — and would collapse under minimal judicial scrutiny. In any case the legal department *should* have seen that Bragg case was a trap. A lawyer on top of things *would* have said: give the guy his legitimately got stuff back.
But I take your point that its unfair to say the legal department didn’t get Philip’s vision. Philip himself seems ambivalent about it.
Ian Betteridge
Jun 1st, 2007
Uri says: “A lawyer on top of things *would* have said: give the guy his legitimately got stuff back.”
Or, better still, pay the guy off without admitting any liability.
I’m not surprised that LL’s legal team aren’t exactly top-notch: they’re dealing with issues for which there’s no real case law.