The Droids We're Looking For?

Now that Kopp v. Vivendi is off the radar, it is probably time to mention another virtual world-related lawsuit that has been making the news lately: Bragg v. Linden Lab. The defendant in this case is not the owner of the first game we always seem to talk about here (WoW) but the owner of the other game virtual world we always seem to talk about here (Second Life).  The lawsuit is rooted in a dispute over a virtual land deal and is being promoted by the lawyer-plaintiff as "a possible first-of-its-kind lawsuit" that is "unique because the land doesn’t actually exist."

The Complaint was filed in District Justice Court of West Chester county -- not exactly a fancy place to break new legal ground, since it is a county court of rather expeditious procedures and limited jurisdiction.  The plaintiff is Marc Bragg, is an attorney with his offices in West Chester, who has issued a press release with details about his lawsuit.  We've since heard that Jason Arcihiano (whose SSRN article was mentioned here by Thomas) will be representing Bragg.  Bragg's holographic, one-page Complaint reads in part:

Defendant runs an online internet game in which it offers virtual land for sale via various auction processes and charges consumer credit cards for on-line purchases.  Def. made unauthorized charges on pltf. credit cards, breached an auction contract by allowing the land to auction, accepting payment, and then suspending pltf's account.  Dft froze pltf's game assets exceeding $8,000 in value.

The Complaint can be found here (thanks to BNA).  Reporting on the case can be found at BNA, Wired, Clickable Culture (with some skeptical comments at CC by Prokofy Neva), and there are over 100 comments over at Slashdot Games.

It appears from these news reports that Bragg figured how to tweak the URLs for Second Life land actions so that certain plots ("sims") that were on the standby queue could be brought up for auction early and bought at a lower price (about $300 compared to about $1000). According to BNA, after Second Life learned of the sales, it froze Bragg's accounts, cleared the sims of his structures, and re-auctioned the property. 

So the key question, from our perspective, is probably: are these the droids we're looking for? 

Well, it seems Bragg and Second Life disagree about this as well.  Second Life's counsel, Ginsu Yoon, told BNA that Bragg's actions violated the Second Life TOS and that this is a "straightforward consumer contract dispute."   Yoon also seemed to imply to BNA that this might be a lawsuit about publicity, pointing out that Bragg had contacted various press outlets and asking "Are these the typical actions of an innocent consumer with a legitimate complaint?"

With regard to the legal reality of virtual land, Yoon went on to say that  "The term 'virtual' may not have a strict legal interpretation, but if anything it means that the thing being described is NOT whatever comes after the word 'virtual.'" (Hmm.. Fair enough, Mr. Yoon, but good luck building your metaverse with that kind of attitude!)

Josh Fairfield, of our ranks, seems to share the opinion that there isn't much to see here.  Quoting copiously from his comments to Wired about the case:

"This case is not the droids case that (people interested in virtual property have) been looking waiting for," said Joshua Fairfield, a professor at Indiana University Law School and a specialist on the law and economics of virtual property. "As I understand how Second Life is set up, land is (the equivalent of) bandwidth. They're selling bandwidth, no different than AT&T selling the bandwidth that allows me to talk to you."

Fairfield thinks the case that everyone is waiting for "is the one about whether or not these things are real property. This (suit) is more like airline mistake cases, where people snap up cheap tickets and try to keep the tickets."

In the end, Fairfield said, Bragg's case is "about the terms of service," and according to Fairfield, U.S. courts tend to strictly enforce such agreements.

Accurate assessment or Jedi mind trick?  Comments open. 

(Fwiw, Second Life TOS are here.)