Unconscionable ToS for Second Life Updated
by Alphaville Herald on 18/09/07 at 10:15 pm
Linden lawyers expect to enjoy home cooking
by Jessica Holyoke
Today Linden Labs changed the Terms of Service (ToS). Previously, the ToS included a forced arbitration clause through the International Chamber of Commerce (ICC). Now disagreements between a resident and the Lindens for amounts under $10,000 can be brought through a telephone conference with a private arbitrator. This means that a neutral third party will hear both sides over the phone and decide between you and the Lindens. The cost of this process to a resident at most would be $185.
This goes back in part to Bragg v. Linden. One of the complaints Bragg had was that the ICC arbitration was more expensive than the bringing a case to trial. Judge Robreno agreed with Bragg at the end of May that the arbitration clause was one part of the ToS as a contract was unconscionable. This change helps residents by offering an easier method to resolve disputes with the Lindens. Residents are required to agree with the new ToS before logging in.
On the other side of the coin, the Lindens added a clause saying that if you disagree with the arbitrators ruling, a resident can still file suit. But if you file suit anywhere but in San Francisco, California, then you may be liable for attorney’s fees, up to $1,000, for their lawyers to fight your “improperly” filed claim. Marc Bragg filed suit against the Lindens in Chester County, Pennsylvania. Now, the Lindens changed the ToS to help prevent that situation in the future.
So while the Linden lawyers will enjoy sleeping at home, filing suit in California does not help the many residents of Second Life that live outside California – and maybe that is the point.
Lindoid Interruptus
Sep 19th, 2007
I am guessing — and I hasten to say that I’m NOT a lawyer — that the bit about bringing suit ONLY in SF is going to turn out to be another “unconscionable” part of the TOS, next time a suit is brought in an “improper” venue. (/me checks bags and gets ready for the exodus). Such cluelessness.
For added amusement, just try following any of the links on the Aristotle/Integrity webpage. Those that aren’t broken are just downright creepy. Yes, I’ll trust Linden Labs as soon as I learn my credit card company has stopped listing them as an online pharmacy. NO WONDER Phil wears that shiny codpiece. Generic Viagra overdose. Someone should tell that boy to keep out of the company warehouses.
nexus
Sep 19th, 2007
If an estate owner takes LL’s TOS and replaces the parties named, and uses it as the TOS to their estate, does LL inherit the TOS, thus obviating the need for setting the land to be restricted using LL tools, but instead using restricted within the estate itself? So if a resident comes to an estate, and clicks an agreement upon landing at the TP point, does that supercede any other agreement,and become the one in force? Do TOS agreements scale fractally? I would rather do that, essentially replacing the law of the grid with the law of the estate, passing liability down the line to the resident, as they do.
SqueezeOne Pow
Sep 19th, 2007
@Nexus
My understanding is that estate covenants and private sim rules override the TOS unless there are parts that conflict.
You’re well within your right to make a “red shirt and green pants only” rule for your sim punishable by banning, but you couldn’t make a “wear a yellow star of David” or “Swastikas only” rule since that conflicts with the overall TOS.
I’m not sure what land tools would be needed other than what’s already available, though. Most action against TOS violations are dealt with by sending an AR to LL for them to ignore or handle personally. Not much automation can be done with “there’s a giant swastika avatar walking through the area” complaints.
Law-Person
Sep 24th, 2007
Linden puts in this clause because once you agree to it, you purposely avail yourself to the laws of California and their court system. This ToS is put there for the advantage of Linden only – doubly, if they decide to sue you, you have agreed to conform to the laws of California (see Burger King v Radiwicz). Its all about the 4 part Personal Jurisdiction rules that started with Pennoyer V Neff. If they didnt put this clause in, you could argue that Linden has purposefully availed itself to you, solicited business in your home state, and file in your home state under the two prong test of Minimum Contacts rule (International Shoe v Washington).
Arbitration is good, but in Linden’s case, it frees them from some certain lawsuits. Arbitrators cant award puntive damages (except if it’s a federal manner), but it would be hard to make an argument that Linden purposely tried to make you suffer.
I knew i went to law school for a reason!
Law-Person
Sep 24th, 2007
A follow up to my previous post.
Linden can, and always will be able to, be sued in any state in the nation. They have met the minimum contact rules set fourth and International Shoe V California and it progency since the 1950′s. They are an online company, advertise nationally, and its expected their product will be used be people all over the US. Pretty much any company can be sued in any state. This all has to do with the horribly complicated concept of Personal Jurisdiction.