Op/Ed: The Avatar’s Dilemma – Trust
by Alphaville Herald on 18/08/07 at 12:07 pm
What do unconscionable contract provisions say about contract creators?
by Jessica Holyoke
Residents are talking about trust more on the grid. And that trust expresses itself in many forms. Some of the trust deals with the SL financial sector. In a world of anonymous avatars and few accountants, it is hard to know what to invest in, banks, bonds or stocks. Now some may say that investing in SL is a fool’s game. But I would say that investing in any of the above is reinvesting into and building up the SL economy without depending on the Lindens.
And we almost have to trust the Lindens. Some of the financial sector’s trust was diminished by the gambling ban put in place by the Lindens. Intellectually, I know that the Linden’s had to comply with various US laws and regulations and they could not give a bigger warning to the casino owners without looking like they support internet gambling. But it would be difficult to invest in a platform if the owners could wipe out your business with a blog post.
Then you look closely and realize the Linden’s are not very transparent and getting information from them is difficult. The Lindens have the blog and the knowledge base, and they do have office hours. But those office hours are not press conferences – they are informal discussions with residents. I realize that the Lindens do not have time for all of the teeming masses, but being able to ask questions and disseminate the information is important to the community as a whole.
At the SLBA meeting last week, the question of how SL contracts should look came up. And the thing about contracts is that inherently, they are distrustful of the people who sign them. They spell out the responsibilities of two people to each other and sometimes they have the consequences if both sides do not do what they promised to do.
At this meeting, someone pointed out that residents were making contracts for years before the SLBA came about. But when you look at these contracts, the absurdity of the terms became apparent. I looked at one and it stated that “seller reserves the right to change the terms of the agreement at any time without notice to you. It is your responsibility to find updated copies of this contract.” Legally, the new terms could never form a valid contract. But no one has cause to question that provision. Another contract details a limitation of use for articles of clothing – if you do not agree, you have to destroy the clothing, without refund. Again, no one has ever questioned the provision.
I bring this up under trusting residents because by making unconscionable provisions in a contract, what is that saying about the drafter? If you cannot be fair in a contract, how can you be fair in other dealings?
And how are the contract disputes resolved? We have third party neutrals in SL, but how does a resident know that they are truly neutral? How do you know that they will perform to the standards you need for meaningful resolution? Additionally, how do you know if the person you are in a contract with will go through with the arbitration?
When looking at the person who raised the contracts question, you have to wonder if the newer residents are trusted by the older ones. Whether a feeling of being challenged exists with the older residents when newer residents get involved. The early adopters were able to build this world and now people are coming in droves to take advantage of their efforts and now the established residents position is being threatened.
Trust is the only way Second Life can work. Perhaps trust is more inherent in an avatar world than a text based world – check out Nobody Fugazi’s your2ndplace blog post. The only way to move forward meaningfully is to trust until that trust is destroyed, but do not risk more than you are willing to lose in case of a failure of trust.
anon
Aug 18th, 2007
Contracts are not inherently distrustful of the people who sign them. Contracts are about explicitly specify what both parties of the contract expect. I pay you this and you fix my roof. Lets say the repair company is at your house. You want the roof fixed and the basement remodeled. The contractor doesn’t do basements but you didn’t quite get that message from him.
When you go to sign the contract, you both know exactly what is expected.
Prokofy Neva
Aug 18th, 2007
Um, yes, nothing like an article on trust from an anonymous avatar, what?
That “someone” was me, but I’m sure I’m not the only one to point out the obvious. Yes, Jessica, long before you got to Second Life with your vast legal knowledge *cough* residents were making contracts: and they do not need you and your class of parasitic lawyers to function in the SL economy. My God, this is a horror.
You fail to recount what you and your little legal beagle friends tried to pull at this SLBA meeting, which the record shows.
The first thing lawyers do is try to make themselves indispensable, when in fact they are not needed. “Oh,” they said. “We need standardized international contracts…for things like renting.” Not!
No. We. Don’t. Piss off. If there are a handful of island thieves, that’s not going to be helped by contracts anyway. People who “buy” islands second-hand from other residents need to understand the enormous risk involved and not undertake that risk if they do not trust the avatar involved, and sue them through real-life actions if they are bilked, not become part of what so hobbles Second Life that it becomes a sequestered handmaiden to RL ambitions.
No one asked for standardized contracts from a group of largely American loud-mouthed lawyers. They truly are not needed. Those that do need them go…*gasp*…to real life where they find plenty of them, and sign them there, and btw, arrange their payments and services there, too.
I don’t have any lease language in my rental leases such as that indicated here, but it seems to me that in a virtual world where the parties to the contract are as fickle and even duplicitous as the contract-maker, an insistence that people have to find the updated contracts might be prudent and not at all based in the evilness Jessica implies.
After all, what means is there to exercise due diligence? It’s not as if there is an inworld or even third-party site for publishing legal notices in that pro forma way that lawyers do in papers that people ignore anyway. It’s not physically possible in a situation with lots of customers with numerous rental boxes to go and make a change to thousands of boxes instantly (unless of course, you use one of those companies like Hippos with networked database, but then you have to trust that company to hand over all your proprietary data, give them your entire sales list, avatar key lists, etc. etc. — and I don’t trust the companies in SL to do that).
So you may put a notice on site in a FAQS, or in a group, but that wipes out every 30 days, or isn’t noticed. In real life, you could count on people to have the common sense, if they were renting an apartment, to go to the rentals office at the center of a building and get the contract and sign it. They couldn’t open the door without it, they’d be forced to go and sign a document and get a newly updated lease in order to get their key. In SL, they don’t think to do that, and fly around aimlessly and cluelessly and refuse to read anything even when you spoonfeed it, and they can just rez a cube and break into a house and pay a self-service box.
In SL, the consequences of breaking a contract that one doesn’t like are simple; you refund, you fly away, the losses aren’t great, nothing like RL. To be sure, people begin to invest larger and larger amounts of money, and then they wish to surround themselves with lawyers. Ugh.
God *damn* the Herald for artificially pumping up these lawyer creatures from RL by fawning over them in the Herald. It’s been really sickening to watch, and there’s been none of that famously imbalanced counterpointing whatsoever.
I hold Uri responsible for pumping up Benjamin Duranske, and Pixeleen responsible for pumping up Jessica Holyoke. What, they want lawyers to take over Second Life??? Are they fucking out of their minds??? Again, Jessica should be *virtually slapped* for suggesting that the numerous contracts that people have successfully made and kept and enhanced for YEARS in Second Life are somehow ‘suspect’ because the “SLBA” (an unrecognized and illegitimate body of its own) wasn’t here to “endorse” or “approve” them.
Picking out the clunkers among the many *successful* contracts that people have made, and even used a notary service inworld to authenticate, is truly unfair to the community of businesses in Second Life that got along perfectly fine — and frankly *will continue to get along perfectly fine* without fucking attorneys in their hair. I hope people will stand up and resist this awful development with all their might.
Resist, resist, resist. Second Life is different; it is better; if you are so nervous — or retarded — in taking risks, then stay in first life, or get first life contracts for your SL affairs. Don’t inflict unnecessary, costly, and prohibitive contracts on the world globally to satisfy your little fears.
Next thing you know, Ashcroft will be along telling everyone they have to create a magisterial system with him in charge, and put up their land as collateral, or they can’t get justice and enforcement of contracts.
>Whether a feeling of being challenged exists with the older residents when newer residents get involved. The early adopters were able to build this world and now people are coming in droves to take advantage of their efforts and now the established residents position is being threatened.
Sigh. This is an age-old tune, but at root, it’s bullshit, and I, with my theory of the FIC, have always pointed out its bullshit — the FIC is a good example of how oldbies can incorporate newbies into their elite ranks without distinguishing age whatsoever, or reject oldbies despite their age.
The world of Second Life is very diverse. Some old people decidedly got an advantage, but not everyone in their class. Some brand-new people, especially those who sucked up to older people (like Jessica sucks up to Pixeleen), get an advantage too, far greater than their cohorts. There’s no automatic privilege confirmed by oldness; it’s more about connection to the core of content producers and Linden hotline.
There’s nothing about “feeling threatened” in pointing out the obvious: a virtual world with a thriving economy *doesn’t need half-baked law students and underemployed lawyers* to set it right. It doesn’t even need intelligent and thoughtful lawyers to force a contracts system *within* it. This is pretty basic stuff. Those who have deals that are sufficiently large and complex use RL contracts in RL, where they abound. Those who have smaller, less complex deals — and sometimes these are quite innovative — don’t need a lawyer or contract to function.
The dislike and distrust of lawyers inherent in many people is one I’ve never shared. In fact, I’ve come to understand it better in Second Life. I’ve worked with lawyers all my life. It’s never bothered me that they have law firms, collect ridiculosly high fees, and seem to be arrogant and insistent on their own role. I just took that as par for the course, as lawyers often can be very helpful and instrumental in achieving things.
Yet, more and more they seem to be required for so many of life’s functions like birth and death that before were occupied by other kinds of human roles that were simply less costly and more accountable. And I simply refuse to allow them to invade Second Life. I hope others will join me in this resistance.
I’m not willing to turn Second Life over to the lawyers. Hell, no. For their selfishness and greed in extracting their own profits and interests, I blame Mark Bragg and Kevin Alderman for opening up the Pandora’s box of lawyers in Second Life. All it did was put blood in the water for the sharks, who sense they have a new and lucrative area now to ply their trade.
I hope other people, whether in business or non-profits in Second Life, even if they loathe me or the style in which I’ve written this, think deeply about what they will lose, and what’s at stake if they allow lawyers to “make themselves indispensable,” especially in a setting where there is no democratic government or rule of law!
—-
More on the SLBA meeting here:
http://secondthoughts.typepad.com/second_thoughts/2007/08/the-first-thing.html#more
Still looking for their transcript link…
Reality
Aug 18th, 2007
Prokofy dearie?
Who are you to make the statements you’ve made in your comment to this article?
Oh right, silly me, I forgot: You’re nobody. You do not speak for the entire Second Life user base.
I call bullshit on your comment: Provide the proof to back it up – all of the proof. Every log, every instance, landmarks if you can.
espresso saarinen
Aug 18th, 2007
“seller reserves the right to change the terms of the agreement at any time without notice to you. It is your responsibility to find updated copies of this contract.”
and how different is this from the same “we can change it at any time without notice” on google privacy, enduser license agreements found in much software, …?
ahahahahha
Aug 18th, 2007
“and how different is this from the same “we can change it at any time without notice” on google privacy, enduser license agreements found in much software, …?”
the “without notice to you” part. read this for an example:
http://yro.slashdot.org/article.pl?sid=07/07/29/1747205
i was lol’ing when i read that someone had allegedly made a contract like that. and i was lmao’ing when i read that it was allegedly prokofy neva, while arguing lawyers aren’t needed.
Jessica Holyoke
Aug 18th, 2007
@ anon
I know your reasoning about making the contract spelled out and everyone knows exactly what they are doing. But at the same time, in an idealic world, an oral agreement should be sufficient, which it sometimes is, and not a 10 page document containing numerous provisions.
@ espresso, mostly what ahahahahha said. Many of the “no notice” or “notice on the side of the web page” provisions that internet companies used or are using are not being upheld.
Anonymous
Aug 18th, 2007
>>”You’re nobody. You do not speak for the entire Second Life user base.”
Pot meet kettle Reality.
Even still you need to stop crushing people under walls of text created with hot air Prok.
Nobody Fugazi
Aug 18th, 2007
Contracts are supposed to give trust – not take that trust away. Contracts are also meaningless without a 3rd party, someone to arbitrate. In SecondLife, the question is – who is it that arbitrates? Linden Lab neatly sidesteps the problem of arbitration whenever it feels like it – which is most of the time – and international law poses more problems than one can shake a stick at, but the largest problem is one of scale of costs.
In SecondLife, where people can be anonymous, contracts are only as good as the people who agree to them. Trust. Every network, social or otherwise, is built on trust. With copyright law being required by SL residents, it seems odd to expect that other law would not be required. No, not odd. It seems foolish.
And ‘Reality’ – please don’t go calling Prok a ‘nobody’. The last thing I need is being accused of Prok being an alt of mine.
Jessica Holyoke
Aug 19th, 2007
“First, Let’s kill all the lawyers” comes from the Shakespeare Play King Henry VI part 2. And its a line that is often taken out of context, such as on Prok’s blog, which he mostly recreated here so he wouldn’t have to submit his articles to an editor, as “Let’s mute all the lawyers.” The continuing method of taking things out of context applies here, because the line was spoken in furtherance of a rebellion against King Henry, killing the lawyers seen as a good way to further the goals of tyranny. Also funny is that the speaker of the line was Richard, Duke of York, or as one online resource referred to him, Dick.
But the whole concept of what Prokofy misconstrued does raise a good question. Prokofy usually rails on about working for avatar rights and then I think he once went into a list of them. I’m wondering, if you wanted to consult a SL lawyer for something what would it be? Not a RL one, or looking for someone to help you with a RL issue, but what would you wish you had an SL lawyer for?
Reality
Aug 19th, 2007
Anonymous, I don’t pretend to speak for the entire Second Life User Base.
I speak for myself, thanks.
Try again.
Jessica Holyoke
Aug 19th, 2007
Nobody, I was thinking along the lines of “you need a contract because you do not trust”, rather than “a contract creates distrust”. But cool, thanks for stopping by.
It also reminded me of something that needs to be clear. The lease agreement mentioned in this article is not Prokofy’s.
Prokofy Neva
Aug 19th, 2007
Um, I’ve read the Shakespeare probably more times than Jessica ever read it in her life, long before she was born. The context doesn’t matter, because the line has entered the culture as a meme of its own, stripped of its context. And while the King may have been just in that context, perhaps in general Kings *aren’t* just. Whatever. It’s really besides the point.
Nobody is right; there’s no legitimate power that can arbitrate contracts and I am definitely not willing to have a resident-based “mediation agency” or “bar association” do this. Others may find it useful; it’s no accident this never catches on, it’s because it’s not legitimate.
It doesn’t matter if it isn’t *my* contract in question; I’m speaking in defense of the class of people who make contracts in SL, who probably have no idea that in fact a group of lawyers is now hedging in on their territory. Push them back.
I can’t imagine needing a RL lawyer for SL. If it reached the point that I had to spend time, talent, and treasure on a lawsuit, it would be because I no longer wished to be in SL. The extreme conditions that would foster the need for a RL lawyer aren’t existing yet. I would tend to avoid invocations of lawyers for any reason. It’s unfortunate that instead of really defending avatar rights and reinforcing the notion of rights and laws, such as for free speech, this soi-disant ACLU presence and the SLBA first consider how they can *control others* not how they can *defend them* and protect the world itself. So I’m supremely unimpressed.
No, I won’t be forcibly required to submit articles to an indifferent editor who doesn’t protect reporters, second-guesses them, and gives air-time to griefers like Mootykips and comments-fiskers like Jessica.
hopaboardthecluetrain
Aug 19th, 2007
what second life needs is more lawyers but the concentration of effort needs to be AGAINST LINDEN LAB.
if your entire economy is premised on an unconscionable contract, of course, what do you expect is going to happen to all the other legal issues that emerge within it?
anybody have a clue why the hell stroker serpentine is suing to recover losses of worthless funny money? because it’s not worthless, you dolts! stroker sold in $L not $US. the disputes being talked about here all involve $L not $US. but the company that can’t tell a consumer protection law from a hole in the ground (Linden Labs with their now-defunct tos) thinks that you have no case because if you’re losing $L, you’re not losing money and it’s worthless.
so what are you people arguing about? contracts, shmontracts; you’re not losing money, who cares, right?! so what will you sue for? funny money? who’s gonna give it to you? won’t be Linden Labs. gonna ask the court to compel the other party to camp up some funny money for you or something?
no, pee-brains, you demand money. $US. you need recognition that time and energy put into your virtuality is worth something and convertible to cold hard benjamins. recognition that $L equals $US. that if your contractee doesn’t deliver the $L, they owe you the $US. that if a linden lab intern forgets what the delete key does, and in the quest for knowledge and tao of linden, tests it out, and wipes your inventory, linden lab owes you $US. it all goes together. and to get the legal recognition, you need to go right to the source. right to the big enchilada. LINDEN LAB and the tos, and every single unconscionable provision that first year contract law students could figure out was illegal. every single line of words that even a prokofy neva coked up on ritalin, caffeine, and poppy flower seeds couldn’t obfuscate into a morass of enforceable legality.(*)
only when you have a fair, realistic, and enforceable fundamental agreement governing everybody’s usage of the world can you then starting wondering how to effectively deal with any and all contract relations arising within it. that does not exist today and won’t till courts force linden labs to make it so. start the lawyer engine where it matters most: at the top, not with the small potatoes!
(*) this message should not be read to condone usage of ritalin, caffeine, or poppy flower seeds. please consult any relevant legislation governing the jurisdiction of your place of residence regarding the legality of the use of such substances, in the event that you live in a nanny state. the usage of the fictitious name “prokofy neva” is completely random, where “random” is legally defined by a senior member of the Bush administration, and is not meant as an implication that such person actually exists in reality or virtual reality nor that such person or avatar uses any of said substances. any resemblance between this name and persons or avatars, living, simulated, dead, or deleted, is purely coincidental.
Reality
Aug 19th, 2007
Prokofy dearie? Again, you’re nobody. You cannot speak for the entire user base of Second Life. You have no right to ‘defend’ them from anyone or anything: No one elected you as our ‘defender’.
Oh yes – and quit your bitching about the process here at the Herald. every real world paper has an Editor … deal with it.
Jessica Holyoke
Aug 19th, 2007
Prok, are you not advocating using a class action or other legal actions against ad farmers and griefers who devalue your land in SL?
Jessica Holyoke
Aug 19th, 2007
Sorry, few other things,
When I asked what *you* would go to a Sl lawyer for, that’s everyone, not just prok.
And Prok, you say comment frisker as if it is a bad thing, although that doesn’t stop you from engaging in it yourself. And if you’re such a tough person, willing to resort to virtual violence at the slightest provocation, why do you need anyone protecting you?
Sin Poitier
Aug 19th, 2007
I agree with Prokofy, please keep lawyers away from SL, your business and your values. I bought a sim from another user, i sell and rent land and stores…since 5 or 6 months ago…and i still don’t need a lawyer.
Maybe if i get married one day in SL (no need to, happily married in RL), and later need to ask for divorce…lol.
Prokofy Neva
Aug 20th, 2007
Jessica, do you ever do anything except try to stupidly play “gotcha,” when you are way out of your league? It’s just retarded.
Like many before you, you earnestly believe you are somehow going to “trip me up” and find me caught in a “hyprokisy”. But you won’t. If you think there is something always hypocritical in what I’m writing, it’s because you assume bad faith in others, since you *steeped in it yourself*. You lie and prevaricate; and you assume others do. You try to get away with murder — and imagine everyone is like that.
As I’ve painstakingly explained before, oh, absolutely I’d love to see a class-action suit against sign griefers. Now…where would that take place? *In real life*. Where else?! A suit against another resident involving a claim of a business loss can’t involve Linden Lab, which is merely a telephone service writ large.
There is no court or entity in SL — and Portugese e-justice isn’t going to cut it — that can force miscreants who damage others’ livlihoods to the curb. So you have to do a real-life lawsuit, and that’s as it should be — just like Stroker Serpentine!
In fact, the idiots stumbling around in SL right now trying to be cool and opening up “help stations” and “law offices” and all the rest are probably *the last* place you’d go to look for competent legal advice. I wouldn’t rule them out; I’d be sanguine.
I’d count on finding one that indeed would work pro bono precisely because it’s a landmark decision sort of case.
Within the context of Second Life, it’s like a law of gravity that you cannot interfere with what someone else puts on their property. And sure, this has its merits, and it’s the best we can get out of the Lindens in terms of ‘property rights’ (Robin Linden rightly calls them “propertarian”).
The simple rules of the TOS, and the simple conditions the Lindens need to keep preclude being able to solve resident-to-resident disputes.
This or that group might get on the JIRA and say, oh, Lindens, do this or do that, don’t let 128 parcels show up for sale in the list (Nobody’s biggest brain wave lately, which i’ve disputed merely because it’s not how to go about it, restricting the market inworld; it makes more sense pre-world to restrict the ability to even sell anything for under 512 for anything more than $0). So let’s say a group of lawyers would get involved actively lobbying LL to change the way they show things in the sale list.
That would be exactly an example of what I’d castigate as interfering and meddling and restricting the world. To solve one problem, they restrict an entire class of people and things. The pre-world solution simply makes a different law of gravity rather than trying to restrict all land sales in the market for ideological/content reasons (the Lindens will likely never go for that).
So instead, a more practical measure is to use campaigns of social ostracism, like boycotts of those who make and use the ads, and also the threat of a good old-fashioned meat-world lawsuit. That might concentrate their minds wonderfully.
If someone obtains a divorce decree by documenting that they became a Second Life widow — good! They did that *in real life, where they are*. They did it not by banning adultery — that’s morality. They did it not by imposing on the Lindens to reveal IPs or put things into the client that out avatars or whatever. The Lindens stay out of it; the entire world is not relevant. It has to happen in real life, where the damage took place.
Business losses in Second Life happen not to avatars, who don’t need food or shelter or anything at all but to stand around looking fabulous.
Business losses in Second Life happen to the typist, the real person, who should sue in real life where he is located.
Jessica Holyoke
Aug 20th, 2007
Prokofy,
I do not lie. Nor do I operate under bad faith. The one who seems to change their tune as it suits them is you. (which you do time and again, its just that nobody has time to track all the statements that you make and call you out on them.)
After all, here you laud Stroker Serpentine for filing his lawsuit in real life, but in other places you state how evil it is for the lawyers to be involved in SL including helping Serpentine file his law suit.
And your august 19th 2:10am comments didn’t reference the in-world dispute resolution system. That seems to be something you added to aug 20 6:23. I like how at 2:10 am you talk about a lawsuit, which can only be filed in RL. And then at 6:23, you change it to mean only the in-world arbitration/mediation system. Bravo.
I know calling people stupid helps you feel smarter, but its only making you look worst.
Benjamin Duranske
Aug 20th, 2007
As is traditional (and tiresome) Prokofy has wholly misrepresented the Second Life Bar Association meeting in a recent post on his site, and pretended he couldn’t find the transcript to link to it.
The transcript is here. Read it yourselves. It’s about 180 degrees opposite of what Prokofy claims.
http://www.slba.info/2007-08-12_Transcript.htm
The really funny thing here is that Prokofy is a member of the SLBA. If Prokofy cared to do something rather than just spin the same broken record, it is a simple process to get something on the agenda at a meeting. But Prokofy didn’t run for office, hasn’t ever suggested an agenda topic for a meeting, hasn’t ever made a motion during a meeting, and doesn’t participate at all — except to complain. I’m glad he’s a member though, as it continues to demonstrate that we’re open to all viewpoints.
It’s a young group. If Prokofy stays a member, he can help shape it however he wants to. But he doesn’t seem to want to — so it’s just Prokofy grinding an increasingly old ax about me. And while I’ve gotten rather used to that, readers should know it doesn’t have anything to do with the SLBA, a group that I willingly elected myself out of control of shortly after I started it.
Patchouli Woollahra
Aug 21st, 2007
The last time the Lindens were honest and upfront in advance about something important (the increase in costs for private island regions), they got flamed and twisted in public for it.
Now why would they keep to procedures that end in personal hurt? Lindenz is people, people. They only get burnt by the same thing once.