The Second Life based Bragg v. L
inden lawsuit, previously discussed here, has been re-filed in Pennsylvania state court. A new press release by the plaintiff is here. The new 46-page Complaint can be found here. No comments to offer at the moment, since I haven't read these carefully yet.
Wow, I can't believe this totally bogus suit still has legs. A testimony to how emotional and acrimonious people can get about games and how determined lawyers in games in particular can get. But there's no case. You don't get to steal something, sell it, and then claim damages. I don't see how that notion is ever going to fly. I'm thinking the only thing that enabled this griefer to have another go at it was a recent decision to outlaw online poker games, so in that environment, Bragg thought he could get another round of media hits.
I'd much rather see a successful case of damages by Linden Lab against griefers who crash the grid, and with business owners like me attached to it who also claim damages. That would be more like it, and that would work more toward making our virtual real.
Posted by: Prokofy Neva | Oct 07, 2006 at 09:59
The REAL news here is Prokofy calling Second Life a game. ;)
--matt
Posted by: Matt Mihaly | Oct 09, 2006 at 14:28
Well, I think the real issue here is, can SecondLife use verbage like "Land Sales" and "Currency Exchange" on the website and in world, but then in the TOS deny that there is no ownership and that the money is not real money?
Shouldn't it be illegal to give an impression in one place, but then to deny it all via a densely worded rarely shown TOS?
Posted by: blaze | Oct 10, 2006 at 09:37
Blaze-
Thats a very similar line of thought in how the IRS determines if someone is an employee or a contractor. The language used publically and in documents determines status as well as how someone is treated.
Posted by: Allen Sligar | Oct 11, 2006 at 15:34
I just read the complaint and it sure raises interesting issues. If the allegations of the complaint are true (and the court will have to assume so on the initial rounds of preliminary motions to dismiss that Linden Labs will undoubtedly file), then this case might just pose a set of nearly ideal facts for a player to assert some type of protectable interest in virtual assets, whether couched as "property" rights or as access rights created by contract.
Whether the plaintiff used an exploit (or not) to acquire one of the pieces of land that he acquired through the SL auction process, it appears that Linden's reaction was to seize ALL of the plaintiff's other land (acquired apparently without issues) and virtual assets (buildings), as well as a substantial amount of U.S. dollars in the plaintiff's account, and to then resell ALL the land seized through auction and to keep all of the proceeds. It appears that the plaintiff had thousands of dollars worth of virtual asserts and real dollars confiscated by Linden Labs, all as a result of one contested auction for a one plot of virtual land that was acquired for $300!
So, even assuming for the sake of argument that the plaintiff did in fact use an exploit for one auction to acquire one piece of land, can the publisher seize all of the player's virtual assets (worth thousands of dollars) without compensation? It might be fairly opined at this point that Linden severely overreacted to the alleged offense. Not a great way to go into a lawsuit.
Complicating the case for Linden is that not only do the TOS provide that a player acquires IP rights in "content" that he or she creates, but there appears to be a long history of public statements and tangible marketing materials by which LL has told the players that they "own the land" and virtual assets acquired in SL. This might the ideal case for a player to get a court to declare inconsistent provisions in the TOS unconcionable and void as a matter of public policy or on equitable grounds. As Dan Hunter and Greg Lastowka have pointed out elsewhere, courts may be reluctant to enforce a EULA or TOS where they place excessive restrictions on players' economic interests. In this case, if the allegations of the complaint are true, its hard to imagine a more excessive interference with the player's economic interest and investment in the virtual assets that he acquired. The court could also well hold that Linden is equitably estopped from relying on the TOS in the face of inconsistent marketing pitches to its customers.
The complaint seeks to have the court declare the player's interest in the virtual land and assets as a "property" interest and seeks damages for common law conversion of the player's "property" by the publisher. The complaint even seeks specific performance by the defendant: that is, forced transfer by Linden of the uncontested virtual land back to the plaintiff, on the theory that the virtual land is in fact unique "property" just like real land!
Of course, it may not be necessary to go that far and the court could protect the player's interests in the virtual land and assets even if such interests are found to arise contractually through a limited access or license right. The plaintiff also seeks redress under California and Pennsylvania unfair trade practices statutes and the California implied covenant of good faith and fair dealing in contractual relations. These latter causes of action may supply an easier path for the plaintiff to seek redress.
Is there any reason to suppose that these issues will not be reached on preliminary motions in this case? (Unless the defendant can get the case thrown out or transferred for some reason not apparent from the facts set forth in the complaint.) I'm surprised at how little attention this thread has garnered to date, given the possibility that this could be the first case to address these issues in the U.S. I also note that the new attorney representing the plaintiff is a partner in one of the best known commercial litigation boutiques in the Philadelphia area, a firm whose litigators have a long time national reputation as legal pitbulls. I see no reason to believe that Linden is going to be able to steamroll these guys. This could get real interesting. :)
Posted by: Randy Maslow | Oct 11, 2006 at 23:24
I was previously under the impression that Bragg was trying to get back the land that he purchased using a URL exploit (according to Second Life), which is entirely different than the facts alleged in the complaint. If Linden really took all of Bragg's non-disputed sims and buildings (and RL money) and nerfed or resold it all, then its hard to imagine a better set of facts for trying to establish that players have some form of legal rights in virtual property and chattels. I tend to agree with Randy Maslow's post above-- this might be the case that finally makes some law in this area. If I was a publisher I'd want to be aware of the old legal maxim: "Bad facts make bad law".
Posted by: Greg T. | Oct 12, 2006 at 11:10
I think " Virtual " is just a part of reality, not anything distinct.Be it " cyber " or any other form of " virtual " . LL is a company who has commercial relationships with his customers , " players, gamerZ , participants bla bla ".Any EULA is nothing more nothing less than an ordinary commercial Agreement,so it should be bounded by the regular commercial laws. Including the " false advertising ". As far as the laws of " child abuse " and those of improper sexual content addressed to underaged are imposed and enforced , i guess it's common sense to implement some basic commercial rules as well. What some MMORPGs companies does , is scamery. Plain simple.
Posted by: Anice | Oct 12, 2006 at 13:10
I really feel this law suit is a good thing. It is far past the time for online gamers to have a few rights to the virtual properties they work so hard to aquire. To have a MMOPRG company just come along and take what you've worked hard to aquire is not fun. Obviously I've had that experience. I just feel that people need to have a few rights in these matters. I'm not a lawyer or a judge so I'm not sure how that would work But as it stands MMOPRG's can be very facist. You are guilty and unable to prove your innocense with them. A online gamer should at least be given recourse to prove their innocense. As it stands often just some person, with little training, is called a "GM" and can at will and at his/her whim just wipe out everything a gamer has worked years to aquire.
With millions of online gamers it's time for the laws to catch up. Which online game will take the first steps and be more open about it's policies and procedures about banning and confiscation of virtual properties? Most of them that I am aware of it's keep a secret. You can't even talk about it on the forums. Even bringing up this subject with many games on their forums leads to a forum ban.
Forgive me but it seems almost like the Nazi's and a form of facism.
Posted by: Alan | Oct 12, 2006 at 15:59
Alan wrote:
Forgive me but it seems almost like the Nazi's and a form of facism.
*roll*
--matt
Posted by: Matt Mihaly | Oct 12, 2006 at 17:27
Randy said: it appears that Linden's reaction was to seize ALL of the plaintiff's other land (acquired apparently without issues) and virtual assets (buildings), as well as a substantial amount of U.S. dollars in the plaintiff's account, and to then resell ALL the land seized through auction and to keep all of the proceeds.
There is a persistent misconception that I've written about here several times: no user of SL owns anything on the system. Period. That much is explicitly spelled out in their EULA -- no matter what SL's flowery public rhetoric might say.
It makes no difference how much time or money you spent acquiring this data; LL can do whatever they like with "your" stuff in the world. There's really no ambiguity there beyond wishful thinking. Given this, it may sting Bragg that LL seized his in-game data, but it's not his data and never was. Even the currency, if held as L$, is explicitly theirs, not his, per their EULA to which he agreed. The currency like the rest of the data is specfically defined to have no value, and they retain all rights to do what they please with it.
I remain boggled by the ability of otherwise intelligent people to try to wish away these simple and overt facts. You don't own anything you have on SL and as far as I can tell have no possible legal standing for saying otherwise. Of course in the US anyone can sue anyone else for anything, and there's nothing you can do about that. But whether the suit goes forward or eventually becomes a precedent is an entirely different matter.
Alan: It is far past the time for online gamers to have a few rights to the virtual properties they work so hard to aquire.
As always when this comes up, I'm curious what you'd do with the heap of 1s and 0s some game or virtual world company sent you if you demanded access to "your" data. Where and how would you use it? What possible value is it to you outside of their world? (Keep in mind that you cannot legally reverse engineer the world or simulator needed to make the data workable, even if you did manage to assert successfully that you own it.)
I'm also bemused by the persistent idea that gamers -- that is, those who are paying for access to a game -- "work so hard" for something. Your paid access to and time spent in a virtual world do not provide for any degree of entitlement; there is no work done, no work relationship, and no product of work. Something is seriously out of whack when people stop seeing this.
I'll tell you something else: if there's ever one bizarro legal precedent in the US giving users of a virtual world some kind of rights to objects in that world, this will effectively kill any virtual world industry involving user-created content, any serious distributed-server efforts, etc. The legal risks will be too ambiguous and too much for commercial enterprises to bear. SL will not be able to afford to operate if so doing opens them daily to new lawsuits; open source or distributed server efforts will not be able to negotiate the legal risks of potentially "killing" or "stealing" someone else's data -- no one wants to be open to charges of theft (or its civil equivalent) because their machine went down at an inconvenient time. At best the entire virtual world industry will be driven out of the US.
I don't believe that users have any possible legitimate standing for ownership over data they access via a paid service such as a virtual world. And I cannot imagine operating as a virtual world developer in an environment where such responsibility for ownership by users could be held over the operator of a virtual world.
Posted by: Mike Sellers | Oct 12, 2006 at 18:14
Mike said: …no user of SL owns anything on the system. Period. That much is explicitly spelled out in their EULA -- no matter what SL's flowery public rhetoric might say.
Well this is where reasonable legal minds may differ. It does matter what SL's flowery public rhetoric might say. Especially given the realities of EULAs/TOS-- i.e., most players never read them, might not understand the legalese if they did, and have absolutely no bargaining position relative to the publisher if the player wishes to play the game. There is considerable legal precedent for the proposition that courts have the power to ignore or reform contractual provisions under such circumstances. And here, you have the publisher marketing the game to consumers using language that is completely inconsistent with the TOS. Should be interesting.
Mike said: if there's ever one bizarro legal precedent in the US giving users of a virtual world some kind of rights to objects in that world, this will effectively kill any virtual world industry involving user-created content... SL will not be able to afford to operate if so doing opens them daily to new lawsuits; ...no one wants to be open to charges of theft (or its civil equivalent) because their machine went down at an inconvenient time.
You raise valid points, as usual, but I believe this argument is overstated. This is not a case where the publisher lost data due to circumstances beyond its control. If the facts as alleged are true, then the publisher simply selected the virtual assets tied to one specific account and deleted the account, keeping the sims (both the disputed sim and all of the non-disputed sims) and reselling them through the SL auction process. You cannot equate these actions with an accidental loss of data through the action of other players or acts of god. Perhaps its debatable whether the publishers should be liable for the latter if sufficient culpability can be established (e.g., negligence in protecting or backing up data or preventing system hacks), but it seems to me that you'd be hard pressed to argue that the publisher should not be liable for the willful destruction of the virtual assets tied to an account in the absence of specific contractual authority for doing so--- and the general "we are the lord, we own everything and can do whatever the f*@k we want" language in the TOS is not the same as "In the event that you do x, y or z, we specifically reserve the right to take all your shit and tell you to go pound sand".
Mike said: At best the entire virtual world industry will be driven out of the US.
Nah, it might not be what the publishers want, but Linden won't stop selling SL in the face of demand for the game. It seems to me that courts can find minimum protectable interests in virtual assets on the part of the account holder and impose reasonable restrictions on arbitrary and excessive interference with such assets on the part of publishers without stifling the economic incentives of publishers to meet the demand for MMOGs. And as for driving the VW industry out of the U.S., its more likely that players will receive such minimum protections first in Asia. :)
Posted by: Randy Maslow | Oct 12, 2006 at 18:55
Caveat, I am talking way out of school: I have never "played" SL and am basing this on only a very cursory reading of the complaint, and even less experience with SL.
Mike,
My first Google of SL and Rosedale led me to this interview (http://www.psfk.com/2006/04/interview_with_.html)
Rosedale: "In the beginning of 2004, we moved from a subscription model to one that is based on land ownership. At that time, a basic account cost a one time fee of $9.95 (it's now free) and if you were a land owner, your monthly fee was tied to the amount of land you owned. At around the same time we introduced IP rights."
When your CEO is out spouting dicta like that ... you can hardly be surprised when player ownership comes home to roost.
Jeff Cole
Posted by: | Oct 12, 2006 at 22:04
Randy Maslow wrote:
Nah, it might not be what the publishers want, but Linden won't stop selling SL in the face of demand for the game. It seems to me that courts can find minimum protectable interests in virtual assets on the part of the account holder and impose reasonable restrictions on arbitrary and excessive interference with such assets on the part of publishers without stifling the economic incentives of publishers to meet the demand for MMOGs.
How do you think courts might do that? I wrote a post on my blog (http://forge.ironrealms.com/2006/10/12/virtual-world-ownership/#more-127) in response, laying out a bunch of scenarios that seem to me to make player ownership a do-or-die matter for MMORPGs. IANAL but it sure seems to me that it'd be incredibly difficult and possibly impossible to effectively stop an operator from effectively seizing an asset as Linden is alleged to have done without legislating game design to a pretty detailed level. I don't see that happening simply as a matter of practicality.
--matt
Posted by: Matt Mihaly | Oct 12, 2006 at 22:50
Randy: If the facts as alleged are true, then the publisher simply selected the virtual assets tied to one specific account and deleted the account, keeping the sims (both the disputed sim and all of the non-disputed sims) and reselling them through the SL auction process.
And if so, given their TOS, they would be completely within their legal rights. Perhaps not the best PR move to some, but hardly illegal.
You cannot equate these actions with an accidental loss of data through the action of other players or acts of god.
I'm not. I'm saying that LL is following what it says it can do, per the Terms of Service. In case you've forgotten:
That's pretty clear. That Bragg has filed a lawsuit is, as I said before, not significant by itself. If he can find a way to get a judge to weasel around this (and other) language in the TOS, he'll be a lucky man -- and the rest of us will be all the poorer.I believe this argument is overstated.
I am a game developer. I can tell you unquestionably that if I were to face the prospect of those using my product either a) asserting ownership over items in it; or b) suing me to gain greater "rights" within a virtual world I developed, I would be forced to shut down my business, relocate it to an area where such threats were not a problem, or engage in onerous (and market-killing) legal preventatives to protect my company from such threats. I am in no way unusual in this. Some developers might choose to weather this storm, but I believe most would not.
I might remind you that this "industry" and the virtual worlds it makes possible did not just spring up out of the ground. The industry has grown in fits and starts over the past 10-20 years due to the insanely hard work of many people. Those partisans who want to put players/users in the driver's seat and violate the rights of those who work and risk to make the worlds possible do not know what they are doing. Just looking at this from a risk and business POV, if Bragg or anyone like him is successful such that virtual world operators begin to face legal or ownership challenges regarding their own products, these operators will have few alternatives but to shut down rather than face such an unfathomable risk, and the industry will vanish overnight. I assure you, I am in no way overstating the case.
Posted by: Mike Sellers | Oct 12, 2006 at 23:51
Matt,
In none of your scenarios do you have the company's CEO shouting from the mountaintop "Players own! Players own!"
You don't need to legislate any further than fraud or various states' deceptive trade practices statutes.
Randy's analysis is hardly unreasonable.
Jeff Cole
Posted by: | Oct 12, 2006 at 23:55
Jeff, see the TOS. Despite what Rosedale or anyone else has said in interviews, that's the binding agreement.
That said, I agree that much of the marketing and PR rhetoric around SL is I believe at some level misleading, perhaps downright deceptive. Users of SL are not "Residents" in anything but name -- they in no way reside there. As the TOS makes clear, they in no way "own" their land or anything they create, despite what anyone else, including their CEO, says. LL has taken the unusual step of allowing its users to retain external intellectual property rights for whatever they create in SL (a right LL retains the ability to terminate if they wish), but this says nothing about their control over such items within SL.
In the interview you cited from April 13 of this year, Rosedale went on to say,
He is then asked, Copyright and IP is obviously a pressing issue in SL. Can you give an example of where there is a grey area? His answer, as published:Clearly, such an answer flies in the face of the actual Terms of Service, and sets the users up for severe disillusionment at best. Unfortunately, it's not tenable to say that Rosedale's comments in an interview trump LL's actual legal policies. I can't really believe that Rosedale is being anything other than ebullient here; this isn't fraud, it's fast-and-loose marketing by a man who believes passionately in his vision.As I said, it's unfortunate because this sets up a false expectation in many users (if the rush to defend SL and "resident's rights" here and elsewhere on the web is any indicator), and leaves LL with a bit of explaining to do when faced with issues like Bragg's. Yes, he clearly violated their TOS and they acted within it in confiscating his SL assets. So does he own his stuff or not? For good legal and practical reasons the answer is a simply "no." LL owns it all and can do with it what they please, as they state in the TOS. Those users who believed the "residency" and "ownership" rhetoric are left without much in the way of a satisfactory resolution.
Posted by: Mike Sellers | Oct 13, 2006 at 00:42
Disclaimer: I am not your (as in anybody reading this post) lawyer. Legal information is not the same as legal advice (i.e. the application of law to an individual's specific circumstances). I recommend you consult a lawyer if you want professional assurance that any information below, and your interpretation of it, is appropriate to your particular situation.
Mike: "Unfortunately, it's not tenable to say that Rosedale's comments in an interview trump LL's actual legal policies."
I would direct you to the Texas Deceptive Trade Practices Act. Basically, to previal, a plaintiff must establish (1) plaintiff is a consumer, (2) the defendant can be sued under the DTPA, (3) the defendant committed a wrongful act from the "laundry list" of Texas Bus. and Comm. Code section 17.46(b), and (4) the defendant's action caused the plaintiff's damages. The "laundry list" includes representing that goods or services have characteristics (e.g. ownership) that they do not have.
In Texas, the DTPA is construed broadly to protect consumers and prevent businesses from circumventing the act through loopholes or technicalities.
If I represented SL (I do not) I would be very nervous about relying on the TOS given the PR SL has generated about player ownership of SL "land."
Jeff Cole
Posted by: | Oct 13, 2006 at 01:20
Andy (also not a lawyer here) with another reading that's also not meant to be advice, but opinion.
Rosedale said, specifically: "...as a user, you own what you create in Second Life."
First, if I was their lawyer, I'd tell him to keep a bit more careful control on his tongue. Second, though, I'm not sure they're in trouble from this statement r.e. the particular legal action we're discussing. Why? Users do NOT create land in SL. They exchange it as part of the "game" which is clearly governed by the TOS. All of the PR talk I've read behind the (IMHO wonderful) SL ballyhoo about user ownership of "stuff" centers on the IP issues; not the issue of ownership of software assets or "game objects." The point being that if I architect a piece of code that controls an in-game object, I own the code... OUTSIDE OF SL. If I use Photoshop to design a wonderful texture or graphic that I sell to folks for use on their avatars, I own it for use... outside of SL. If I use Poser to design a complex animation... if I use SL itself to film a movie... etc. etc. You get the point.
There is a stark and clear line between owning the code, servers, programmatic materials, online interactions and "code objects" that "exist" on the various SL matrices... and owning the copyright on the intellectual property that goes into making those things interesting. It is the difference (in some sense) between owning my guitar, and owning the rights to the songs I play on it. I may be borrowing the guitar, it may be stolen, or I may own it... but that in no way affects the ownership I have (or don't) over songs that I author.
Most MMOs are extremely explicit about owning ALL IP and copyright over everything that happens in their games; this is because, like many publishing companies and entertainment producers, they see the *content* as one of their chief assets. In the case of Linden, they see the *platform* as their chief asset, and want the users to feel ownership of the content.
In this legal action, what we have here (I believe) is a user who is trying to exert his rights over portions of the platform, using language that muddies the distinction between that and his rights to his content. This would be (in reverse) like my saying that because I buy a book, and therefore have rights to the platform (the container), I can photocopy it and sell the copies. Not true. Rights over IP do not transfer to rights over the medium and vice versa.
The TOS is very specific about the rights you have in the medium itself. The medium is the "game" of SL. Linden *must* as Mike points out very eloquently, retain control over the medium. It makes for a number of very frightening scenarios for the publisher and all the other users if a few clever, litigious users can shut down the whole grid with some clever programmatic and legal exploits.
Linden granting users copyright to the IP that they create in game was an extraordinary, risky and bold step forward in this industry. If Linden did screw up a bit in the particulars of this situation, I do hope that the courts don't throw a big blanket on a small fire; I would hate for this to go backwards in terms of Linden having to basically say, "Forget it. Nobody else owns nothin'. It's all play money from now on." Which might have to be the answer, if the legal risks get too out of hand.
Posted by: Andy Havens | Oct 13, 2006 at 13:09
Andy wrote:
Linden granting users copyright to the IP that they create in game was an extraordinary, risky and bold step forward in this industry.
A couple points just occured to me.
1. Perhaps this is a semantic point, perhaps not....If Linden is granting users copyright, then there is the presumption that they inherently and automatically own the IP to begin with, which is false. Otherwise, no grant is necessary since the IP creator owns the work to begin with, by default, assuming it's not a work-for-hire situation.
2. Many virtual worlds (including ours) already fail to take ownership of the IP a user generates in their worlds, preferring instead to be granted a perpetual non-exclusive license to said material. That pretty much solves that problem from our point of view, since the IP a user generates (speech, writing, graphical files, code) can simply be taken by the user elsewhere and still potentially retain utility (though in the case of code, less likely. Still possible.)
The actual tricky issue comes with virtual objects that are generated by the game-code (a sword, etc). Randy Maslow (IGE's general counsel) above opined that players own these actual objects and it seems to me that this is the hard part, not what you're discussing.
--matt
Posted by: Matt Mihaly | Oct 13, 2006 at 14:10
Hey, Matt, I don't have time at the moment to respond to your prior post, but will when I get a minute over the weekend. But I did want to clear up right away two things in your immediate post above. First, I am no longer IGE's general counsel, having left the mgt team and the board in February of this year. Also, I have never taken the position that players "own" the virtual objects in MMOGs, but rather that players may (and should) have legally protectable interests in virtual assets that they acquire in the game. More later. :)
Posted by: Randy Maslow | Oct 13, 2006 at 16:09
There was a similar incident to this a couple of years back, in which Linden permabanned a user due to her in-world conduct. This person had significant land holdings, which Linden repossesed and auctioned off. They then sent her a cheque for the proceeds, less an administration fee.
One of Linden's VPs recounted this story during a talk given a couple of years ago.
Posted by: Tom | Oct 13, 2006 at 16:33
My apologies for the misunderstanding, Randy. I couldn't find any info on IGE's current execs and didn't know you had left the company.
I'll be interested in hearing your formulation of protected interests that players should have in virtual objects they acquire.
--matt
Posted by: Matt Mihaly | Oct 13, 2006 at 17:23
I think you need to go back and read everything out on this already, including the law journals and sites.
If you steal a car, and the police catch you and take the car back, do you get to sue them for stealing property you had in your hands once that in fact was hot?
No, you don't.
If you left your cell phone in the hot car you stole would you be able to sue the police to get your cell phone back? That seems to be what you're saying the case is.
The idea that the state can't seize ALL your assets just because some -- even the biggest part of them -- are stolen is likely valid, but in this state, the TOS says they may expel you and seize your property for any reason, or no reason. So, "just because," they can do that -- and it's unlikely anyone will be able to successfully challenge it.
It's a very dirty case to be trying to use to assert virtual property rights -- which many of us would like to assert -- because it involves authenticating the act of deliberate exploitation and selling of a hot sim along the way. This is indeed a bad case that makes bad law, and it's not that the facts were bad. In any news story or law site going into this case deeply, there has been plenty of information and discussion about how Bragg's claim is that his non-stolen land was also seized. The value of that doesn't seem clear, however, and doesn't seem to be of the order of $1000 plus of a sim at auction.
At one time there did seem to be a policy that if you are booted for violation of the TOS, your holdings would be auctioned and you would get the proceeds.
However, that policy appears to be 86'd now.
Recently, when Verbena Pennyfeather of V-5, a sub-group of W-hat, was found guilty of grid-crashing, and a host of other violations were found from the sim of Satyr which she owned, the Lindens booted Verbena, and seized the sim. Verbena then cancelled her credit card to prevent the Lindens from charging the tier on it -- you owe the $195 regardless of whether you had use of the land for the entire month or not.
It seems to me discussion of IP and creative rights are a sidetrack here because land is not IP, it's just server space. There's no creativity in chopping up and selling land. If the land were already developed with houses and infrastructure, perhaps some case could be made, but this was just new, undeveloped sims at issue.
Posted by: Prokofy Neva | Oct 14, 2006 at 01:19
But I've always called it a game.
I definitely don't keep to the Newspeak LL tries to enforce on this.
While it may not have a goal or skilling or levels as such, SL involves play -- play of the imagination, of the land market, the stocket market, the sex poses, whatever.
Something you play is a game, even when it's work.
Posted by: Prokofy Neva | Oct 14, 2006 at 01:20
@Prokofy: As has been pointed out before, SL is not "a state." The TOS are not laws. Linden is not a government. You yourself say it's a game. So comparisons to police, cars, phones, theft, etc. aren't really helpful.
What we were talking about was the reliance of the buying public on the word of an officer of a company in terms of the availability of a feature of service, which *can be* legally binding from a marketing/advertising standpoint. If I, as president of the company, say in a published interview you can have XYZ from my product, but the fine print of the conract clearly says differently... a court may very well find that the public, highly visible, clear and compelling language of a press release is as or more binding than a vaguely written and currently untested passage in a piece of click-wrap. Not saying that's so in this case, but courts have upheld "bad puffery" cases when companies make claims that their product lit is at odds with.
As to the issue of "land isn't IP, it's just server space." It ain't even really that. Because I can take up all kinds of server space with a character that owns no land by loading him/her up with objects in my inventory that have to be preserved on a server. Or I can own land and build nothing. "Owning" land in SL is a game token. That's made so clear, using other words, in the TOS that it's amazing to me that anyone is wasting money on a lawsuit.
The reason I think a discussion of IP is important, is that it isn't something the ownership of which is inherently a given. When you engage in a commercial transaction with a corporate entity, in many cases any IP that is generated as part of that relationship belongs, in its entirety, to that entity. For example, when you attend a sporting event, you give away your right *not* to be shown on televised coverage of that event. That's part of what you inherently sign away when you enter into the contract with the venue; you lose control of your televised image. You have almost no rights over its capture, broadcast and storage.
There is absolutely no reason why a publisher of a game couldn't say, "Any and every piece of IP generated during this game experience is the sole and complete property of the publisher." If you agree, and play the game, and generate a great story and some fab machinima in the game, and millions of people want to join up just to watch... the publisher gets to rock on with your content. Because you agreed to that. You became, essentially, a paying employee of the corporation. Why would you do that? To gain access to the game. You don't like them apples? Go play SL.
Posted by: Andy Havens | Oct 14, 2006 at 11:24
Here's the fine point, and the bind that SL and especially its proponents are in:
If SL's users are "residents" and "own land" as LL's CEO, marketing rhetoric, and many user-proponents have said, then it's reasonable to assume that certain rights (against seizure, etc.) pertain to that ownership and residency.
If that's case, SL has acted badly in confiscating all of Bragg's property; they have placed themselves in a precarious legal position in so doing, and will potentially be open to similar charges in the future.
OTOH, if "land" in SL is merely data or "server space" and objects are also merely data held in memory there, then users of the system have few if any rights to that memory. SL, as the clear and inarguable owner of the hardware and software, retains all rights to the disposition of that data (as is clearly spelled out in their TOS).
If this is case, SL has acted properly and there's no legal issue at all.
So here's the rub: those who want to argue for users having rights to objects and/or land in a virtual world (today, not in some misty potential future) can do so only by agreeing that the actions Linden Labs reserves for itself (and which it exercised in this case) are illegal.
If you don't want to argue that LL did anything wrong, then you're necessarily arguing that users have no rights to the data or memory they use there (colloquially, "their land" or objects).
This presents an interesting bind for both LL (given its rhetoric) and proponents of users "rights" in virtual worlds, including the proponents of a SL-based Metaverse, etc., many of whom are not surprisingly fans of Second Life: supporting both seems untenable given this case.
That this issue should have arisen at all shows the importance people place on their virtual world experiences, and the importance of maintaining a clear message as to exactly the limits on the services a virtual world provides.
Posted by: Mike Sellers | Oct 14, 2006 at 11:50
I think that the debate surrounding the respective rights of players and developers/publishers in virtual worlds has been complicated by the emotions attached to words like “ownership”. When players talk about “owning” the virtual objects that developers produce through the game code, developers react with a level of defensiveness that I think obscures the mutual best interests of both parties.
It is not necessary to “own” an asset (tangible or non-tangible) in order to have a protectable legal interest in that asset. If I lease an apartment or automobile from you, I have a protectable legal interest in the apartment or car for the length of the leasehold, even though I do not own the asset. Similarly, a licensee has a protectable legal interest in licensed IP even though “ownership” resides in the IP holder/licensor. This may even extend in certain circumstances to my right as a licensee to transfer my licensed rights to another party, though I still do not “own” the underlying IP.
I think that Sony Online Entertainment has begun to develop the right approach in connection with Station Exchange-enabled servers in EQII, although I think their model has a long way to go. The Station Exchange Agreement grants a limited license right to players in virtual assets, allowing alienability of those virtual assets while at the same time reserving all the accoutrements of “ownership” to SOE:
"SOE hereby grants you the limited right to transfer and receive the licensed right to use Virtual Goods, in return for real money, solely through the Station Exchange and solely in accordance with this Agreement…….. You agree that SOE retains the unfettered right to modify its games and all Virtual Goods therein. You acknowledge that SOE has been, is, and will be constantly making changes to its games. You further acknowledge that SOE can and will, in its discretion, modify features, functions or abilities of any element of the game or any Virtual Goods (which may, among other things, make the Virtual Goods substantially more effective or functional, or less effective or functional, more common or less common, or eliminated entirely). YOU PROMISE, THEREFORE, THAT YOU WILL NEVER ASSERT OR BRING ANY CLAIM OR SUIT AGAINST SOE…WHICH IS RELATED TO OR BASED ON (I) A CLAIM THAT YOU "OWN" ANY VIRTUAL GOODS IN ANY GAME, (II) A CLAIM FOR THE "VALUE" OF VIRTUAL GOODS IF SOE DELETES THEM (AND/OR TERMINATES YOUR ACCOUNT (S)) IF YOU OR ANYONE ACTING IN CONCERT WITH YOU VIOLATES ANY PROVISION OF THIS EXCHANGE AGREEMENT OR THE UNDERLYING LICENSE AGREEMENT AND RULES, (III) A CLAIM FOR THE "VALUE" OF VIRTUAL GOODS THAT YOU MAY LOSE IF SOE DOES ANYTHING THAT IT IS ENTITLED TO DO PURSUANT TO ANY PROVISION OF THIS EXCHANGE AGREEMENT AND/OR THE UNDERLYING LICENSE AGREEMENT AND RULES, OR FOR ANY MALFUNCTIONS AND/OR "BUGS" IN ANY UNDERLYING GAME, AND/OR (IV) A CLAIM THAT THE "VALUE" OF ANY VIRTUAL GOODS HAS INCREASED OR DECREASED BY VIRTUE OF ANY GAME MODIFICATION THAT SOE HAS MADE OR WILL MAKE ."
Thus SOE has given players what they want (the right and ability to use, buy and sell virtual assets) while at the same time protecting its right to fashion its VW as it sees fit, without incurring liability to the player. There is no reason that the player cannot disavow any liability on the part of the publisher for anything related to the game design or modifications to the design or contractually agree that, without any liability to the player, the publisher can shut the game down if it deems the game a financial failure.
I believe that this is a start in the right direction, a model whereby the developer retains “ownership” while granting license rights to players to use and freely alienate virtual assets. The interests of both parties are furthered. However, I do think that the Station Exchange EULA leaves a lot to be desired. The EULA still overreaches in many respects, not the least of which is the lack of any kind of “liquidation” provision for a legitimate account banning where the account has valuable virtual assets that were legitimately acquired (i.e. not duped or acquired by exploit). Where SOE has really miscalculated, in my opinion, is in purporting to restrict the exchange of virtual assets to those occurring on SOE’s own exchange service. I think that was a bad move from an SOE business perspective and subjects the model to attack on federal and state antitrust, unfair trade practices and other legal grounds. But, I digress……
The EQII EULA covers most all of the various case scenarios referenced in Matt’s blog and generally protects the developer’s right to fashion its VW and game design as it pleases without incurring liability to the players. However, what about Matt’s Case #5? Well nowhere in SOE’s EULA does it say: “SOE RESERVES THE RIGHT TO SEIZE ANY VIRTUAL ASSETS ASSOCIATED WITH YOUR ACCOUNT WITHOUT COMPENSATION TO YOU IN THE EVENT THAT YOU PISS US OFF IN ANY FASHION AND FOR ANY REASON WHATSOEVER”.
And why would it? How is that reasonable? How is that in any way beneficial to what SOE is trying to accomplish in terms of encouraging the free exchange of virtual assets among its players? SOE does not take any such position in its EULA-- not just because it would be bad business to do so, but also because it would be inherently unreasonable and legally indefensible to do so after inducing players to pay money to play EQII in part on the premise that the players have the ability to freely acquire and sell virtual assets for “real money”.
This is where, I think, the concept of minimum protectable interests on the part of the players comes in. The Bragg case seems on its face to pose an extreme example. While I think it is reasonable and necessary for a publisher to reserve its right to terminate a player’s account for violation of the EULA/TOS, shouldn’t the remedy be reasonable?
If I have an apartment lease with you and I stop paying the rent, you have the right to evict me from the apartment, after due legal process. If you are successful, you can evict me and get the sheriff to throw me out, but you cannot deny me access to my apartment first and go into the apartment yourself and take my furniture, my cash, and my dog. According to the complaint, Bragg’s account held many thousands of real dollars worth of sims, only one of which was allegedly obtained impermissibly (for just $300). The account also apparently held other virtual objects such as buildings and a substantial amount of real U.S. dollars. Even if it could prove that Bragg violated an express term of the TOS, wouldn’t it have been more reasonable for Linden to have terminated Bragg’s account but held the equivalent of a “foreclosure sale” and turned the money realized on the sale of the non-disputed sims over to him? Or given Bragg a short window of opportunity to sell those assets before being frozen out of his account?
I think Bragg’s argument is even stronger in the case of Second Life, where the publisher is selling these assets directly to the player rather than merely facilitating the exchange of virtual assets between third parties. The non-disputed sims were acquired by auction directly from Linden, for thousands of U.S. dollars that dropped straight into Linden’s bank account! And Linden had trumpeted publicly and marketed its product in part on the basis that the players “own” their land and chattels, in contrast to the positioning of other MMOGs.
Does anyone really believe that Linden can do WHATEVER it wants, for any reason whatsoever, simply because the TOS (which, by the way, can be unilaterally changed by the publisher at any time) purports to say that it can? What if Linden decided tomorrow to terminate the account of every player who owns more than $2000 worth of sims and confiscate the land and resell it and keep the proceeds? Or turn the confiscated sims of those “rich players” over to all players who live within 100 miles of San Francisco? Is that permissible? Does anyone believe that Linden can terminate the account and seize the associated virtual assets of anyone whose last name sounds Arabic, or Jewish? Or anyone who has chosen an avatar with brown skin?
The EULA/TOS is not a “get out of jail free under any circumstance” card for the publishers. Courts can, and do, reform contracts all the time, especially under the broad equitable powers granted courts in most states. If the facts alleged in the Bragg complaint were proven, I think a court could find multiple bases upon which to achieve an equitable result, whether based on unfair trade practices statutes and consumer protection laws or on an implied contract/license right for Bragg to access his account and the virtual land/chattels that he had accumulated in his account (minus virtual assets that the publisher could show were accumulated in contravention of the stated rules or law). At the same time, I can also envision a court upholding the publisher’s right to terminate the player’s account for violation of the express terms of the game contract, but limiting the publisher’s remedy to what is reasonable under the circumstances.
I heard an interesting analogy today that, while slightly strained, is nevertheless amusing. Its as if Bragg, a loyal and long time customer, came into his local Wal-Mart to buy a roll of toilet paper and (knowingly or unknowingly) grabbed a roll that had the wrong price sticker so that the price was reduced from $1 to 33 cents. The cashier rings him out at the checkout counter, but later notices that the register calculated the wrong price. Wal-Mart’s crack team then shows up at Bragg’s house a day later and, while the rent-a-security guard holds Bragg at bay, the store manager confiscates the offending 33 cent roll, every other roll of TP in the house, and every other item in the house that Bragg had ever bought from Wal-Mart ($5000 worth of stuff), though none of those other items could be shown to have been improperly acquired. For good measure, the security guard takes $20 from Bragg’s wallet while he is pinned to the ground.
Oh, and then after they leave with the truckload of Wal-Mart stuff, they bulldoze his house.
Posted by: Randy Maslow | Oct 14, 2006 at 14:55
@Randy: Methinks thou protesteth too much.
Posted by: Andy Havens | Oct 14, 2006 at 16:01
This could be the end of SL, and could well prevent anyone else from trying a similar service in the future. If LL loses, they go broke trying to safeguard virtual property rights. BUT even if they win, they prove that there is no such thing as virtual property; that the dream of "virtual marketing" can never be.
Posted by: Mikyo | Oct 14, 2006 at 17:49
Randy,
Much of what you say makes sense to me. Linden is explicitly encouraging people to treat money spent in Linden Labs as an investment rather than an expense, and that should come with very serious responsibilities on their part, perhaps along the lines of a bank.
The EQII EULA covers most all of the various case scenarios referenced in Matt’s blog and generally protects the developer’s right to fashion its VW and game design as it pleases without incurring liability to the players. However, what about Matt’s Case #5? Well nowhere in SOE’s EULA does it say: “SOE RESERVES THE RIGHT TO SEIZE ANY VIRTUAL ASSETS ASSOCIATED WITH YOUR ACCOUNT WITHOUT COMPENSATION TO YOU IN THE EVENT THAT YOU PISS US OFF IN ANY FASHION AND FOR ANY REASON WHATSOEVER”.
I'd argue there is a very thin line between "whatever pisses the developer off" and a violation of the rules when it is the developer who writes and enforces the rules. That is, fundamentally, where I think the problem comes in particularly when dealing with the more game-oriented virtual worlds.
Let me give you an example from our worlds, for instance. Our worlds have a fairly singular way of handling the PK rules. Aside from protecting total newbies, there are only a few special situations in which the code will prevent you from attacking another player. Same with using various abilities to either take items from a player or, more commonly, force the player to give you the items. (Though anything you purchase from us will reset back to your inventory within an hour of giving it away.)
When a player feels another player has violated a rule in a way to harm him, and doesn't want to or can't handle retribution himself, he files an Issue against that player. The issue is then reviewed by an admin and a judgement is rendered, after examining whatever evidence can be examined, according to the PK rules. In our biggest game - Achaea - the PK rules are actually quite thorough. (You can access the help files to read about them here, in summary: http://www.achaea.com/irex/helpview/help.php?id=366 and here in more detail: http://www.achaea.com/irex/helpview/help.php?id=551
and here for more on PK cause: http://www.achaea.com/irex/helpview/help.php?id=552)
So, hypothetical:
Player A, who has spent a lot of money "buying" virtual assets from us, has a history of being a troublemaker. He's been punished multiple times in the past for willful PK violations. He has a long history of antagonism on the forums and in-game with Player B, and they've both done things in the past to generate what we call 'cause' on each other. Both are probably looking for any excuse to attack the other one.
Player A kills player B, and unfortunately, player B decides to play rules lawyer and files an issue pointing out that player A didn't have 'cause' on him. Player A has, as I mentioned, a history of doing this, though it's been a couple months since he was last 'convicted' of it.
Player A is convicted of the issue and because of his numerous past violations, and because of his bad attitude and refusal to atone, he is shrubbed permanently, meaning his character is turned into a shrub, and all his commands map to 'rustle', which makes him rustle in the wind a bit. (It's quite humiliating for another player to come along and urinate on you while you're a shrub!)
Did we just steal Player A's virtual items that he had "purchased" from us? What about if the admin who made the judgement is accused of not giving the 'case' sufficient attention? How about if the admin actually had a demonstrable personal bias (something we don't guarantee against because the relatively small size of the community makes it too hard) against Player A? What if the admin was actually wrong? Almost every player convicted protests that he was unfairly convicted (big surprise).
It just gets....complicated. Really, really complicated, and to the point where I'm not even sure there is a distinct line to be drawn between "because he pissed me off" and "because he violated the rules."
I mean, of course, we try to veer as heavily as possible towards the latter, but even in the US justice system, judges technically have the power to send you to jail simply for having a bad attitude, don't they? Contempt of court?
--matt
Posted by: Matt Mihaly | Oct 15, 2006 at 12:21
>I'm also bemused by the persistent idea that gamers -- that is, those who are paying for access to a game -- "work so hard" for something. Your paid access to and time spent in a virtual world do not provide for any degree of entitlement; there is no work done, no work relationship, and no product of work. Something is seriously out of whack when people stop seeing this.
There's something seriously wrong, Mike, when people make these sort of pronouncements based on the past history of MMORPGs without tuning into the new realities of virtuality.
Your near-hysterical threats to cease game development if your players gain any rights over your god-like disposition of their fates is frankly unseemly these days, in the era of prosumers, partnerships with customers, etc. You'd never be that hysterical about a website or Internet connections if you were an ISP, where someone purchases the domain, and feels they have a right even to sell the content within or through that website in various ways.
Nobody's getting all thinky about the concept of "owning" a "domain" which isn't really "theirs" if it can be shut off by domain-powers somewhere blah blah.
Of course there is work done in Second Life, when you provide goods or services for a customer. It doesn't matter if many of the people in SL in fact are there for entertainment; like Linden Lab itself is a company doing work by providing the venue for that entertainment, so many of us on this platform are providing goods and services that indeed constitute labour -- and labour for which we are paid, and in Lindens that can be legally under the TOS cashed out for dollars.
To be sure, the TOS is larded with language to protect LL from lawsuits, and says that the Linden has no intrinsic value. Be that as it may, many find that it does have value and are willing to pay Linden Lab for this currency, which LL itself issues and sells on the open market, and through the LindEx, to other residents who put up their Lindens for sale. Call it a chit or a ticket; it still has value.
Bragg's account contained his proceeds from the sale of what were essentially "hot" sims. He's not entitled to these ill-gotten gains.
Perhaps he can mount a claim for his previous lawfully-obtained gains, but it would be in spite of the TOS, which makes it clear that your account and items may be taken at any time, basically for any reason or no reason. That doesn't mean they don't have value as such -- a value recognized every time LL sells an island or a mainland sim off the auction or accepts payment for currency. But it means that LL holds the keys to your use of that valued item and makes it contingent on compliance with the TOS. I find this power overreaching -- I don't like the idea that someone can be stripped of their wealth on a speech offense, for example -- but that's what we have to deal with at this juncture.
Randy, your analogy to the Wal-mart's operation is completely skewed -- because when I buy toilet paper at the Wal-mart, I don't sign a TOS which pledges me to abide by certain rules.
I'm puzzled why so many commentators think this one case will serve as such a clear-cut precedent that it will make or break SL. For one, it's likely to drag on forever and never reach closure, as Bragg ultimately makes a bid for a settlement out of court. I hope the Lindens don't settle. They ought not to be bullied into settlements by a thief.
Andy, indeed it is like a country or a state -- or if nothing else, a kind of village or country club. The TOS is indeed equivalent to law. This will become more and more established, and your notion that you can be so final and determinist about this is misplaced. You can't. If this case doesn't determine the value of virtual property, another will in time. It might be similar to a RL situation where the value and the rights will be established by something like a widow's claim to her husband's property when he dies.
Enough cases like this, even unresolved, will compel better TOS and RL laws to be written.
I don't see why you can claim a "gotcha" with my use of the word "game". It is widely termed "a game". It isn't a game with a quest and levels like World of Warcraft. But it has game-like features in that people role-play, play the land market, and even play LL for what it's worth in a court of law -- people like to play games of all sorts. That doesn't mean that within this game, there is work and serious business as well.
It's definitely also work, and it's also a business application for a tiny but significant and growing minority.
Posted by: Prokofy Neva | Oct 16, 2006 at 07:33
If I remember my forum dramas right, this guy basically pasted in the number of a sim waiting to come up on the auction page into the URL for sim auctions, bypassing the webpage system.
Kind of like what this guy did:
http://www.samizdata.net/blog/archives/008118.html
I think it's interesting, given the global nature of all this, that in one country you can get a criminal conviction for donating money, and in another, the potential right to sue the victim of your theft.
Posted by: Ace Albion | Oct 17, 2006 at 06:04
Ace Albion wrote:
the potential right to sue the victim of your theft.
You can sue someone for anything though. Doesn't mean the lawsuit will go anywhere.
--matt
Posted by: Matt Mihaly | Oct 17, 2006 at 13:15
Prokofy said: "Randy, your analogy to the Wal-mart's operation is completely skewed -- because when I buy toilet paper at the Wal-mart, I don't sign a TOS which pledges me to abide by certain rules."
What if if you were required to sign a TOS by Wal-Mart when you walked in the door? What if one of the remedies for not "abiding by the rules" was that Wal-Mart can come take away everything you ever bought from them that you had not already disposed of? Do you think that courts might not find such a contract unconcionable? What if every store in the country had the same TOS, so that you do not even have the option of choosing Target over Wal-Mart based on a less onerous TOS? The fact that a player *consents* to the TOS may not be dispositive when he or she may never even had read the terms, might not understand the legal terms if he or she did, and has no leverage to negotiate such terms with the publisher. I guess we'll find out one of these days. :)
Posted by: Randy Maslow | Oct 17, 2006 at 14:14
I think it's interesting, given the global nature of all this, that in one country you can get a criminal conviction for donating money, and in another, the potential right to sue the victim of your theft.
That's a bit of an inflammatory statement. He didn't get a conviction for donating money -- he got a conviction for performing a well-known (if somewhat simplemended) poke at a website's security. Whether that decision was right or wrong, it's not really like what is alleged to have happened in the Bragg incident.
According to the original filing, Linden's response is due on Tuesday of next week. Looking forward to reading that once it's posted.
Posted by: Tom | Oct 17, 2006 at 14:17
Randy said: "What if if you were required to sign a TOS by Wal-Mart when you walked in the door? What if one of the remedies for not "abiding by the rules" was that Wal-Mart can come take away everything you ever bought from them that you had not already disposed of? Do you think that courts might not find such a contract unconcionable? What if every store in the country had the same TOS, so that you do not even have the option of choosing Target over Wal-Mart based on a less onerous TOS?"
Well... you kinda do. It's called the law. Most of what many TOSz spell out are, essentially, the laws that govern a particular type of business transaction. Or the choice of which laws a publisher wishes to put forward. So you're talking about in a TOS, really, is a publisher saying, "There are many laws. Here are the ones that apply to you, here, in reference to these kinds of activities."
The exact same kind of situation exists for WalMart, Target, et al, except the laws (TOSz) aren't, as you suggest, "handed to you" when you walk in the door. They are part of our common system of laws, and generally taught in 3rd grade or before. Let me give you an example.
If my friend Kenny invites me to his house and tells me I can borrow any of his toys, and I subsequently choose his GI Joe with Kung Fu grip, and I place it in my Sponge Bob back-pack and walk out of his house with it and take it home, I have in no way stolen it. Even if, later, he gets mad at me for calling him a spaz, and wants it back. Even if I decide not to give it back to him. His mom can call my mom and we can work something out, I'm sure... but it's not theft.
If, on the other hand, I walk into WalMart and put that same exact model of GI Joe into my exact same back-pack and take it to my exact same residence... WalMart can come after me for theft. Why? Because the "Grand TOS of the Republic," the laws of the US and the State of Ohio, say that taking stuff you haven't paid for from a retail store is theft.
Now... if I bust into Chumley's house at night, two doors down from Kenny's... Chumley who don't know me from a hole in the ground... I'm stealing again. Right?
See... All kinds of differences, depending on circumstance. Which is why the TOS for most software is so complex. Because they are trying to make a very complicated possible set of legal paramaters, for a wide range of uses, as clear as possible for all possible situations and users... and trying to cover they ass from incoming lawsuits, and to protect their assets.
The law does, frankly, EXACTLY what you describe in your hypothetical in some cases. If I steal enough from someone, the remedy can be confiscation of my assets in order to repay my debts. And it matters not a whit if I steal the toilet paper from WalMart, Target or the A&P.
Every store in the country does have the same TOS. It's called the law. And the TOS for most software just points that out for customers. If a TOS, or any contract, is unlawful... that's a different story. And in that case, can certainly be litigated.
Here's one important thing to remember, though; if you sign a contract, you are obliged to honor it, at least to the extent to which you understood it or believed it at the time you signed/entered into it. If you go into a contractual relationship intending to violate various aspects of it -- even if you believe that you have the right to because you think those aspects are unenforceable or illegal -- that is bad-faith dealing. A no-no. So you can't say, "Yeah, I signed the TOS, but since I thought such-n-such a clause was illegal or unenforceable, I decided to go ahead and violate them." Nope. You can negotiate a new contract if you like. You can take the company to court before-hand to have the contract declared void. But you can't sign a contract and then violate it because you think it's unfair or wrong.
Posted by: Andy Havens | Oct 17, 2006 at 17:22
"He didn't get a conviction for donating money -- he got a conviction for performing a well-known (if somewhat simplemended) poke at a website's security."
They both typed in direct URLs to bypass the navigation structure of a website. Potato potahto to me. The point was just that this is a clear cut criminal offence in the UK, but that it's so ambiguous in (whichever state the law applies from) that there's even a discussion about the rights and wrongs.
I checked back on Randy's mispriced dollar item checkout analogy. I think the situation here was more that this guy walked through an open door into Walmart's backroom stores and took a laptop computer to the checkout with some default wholesale price still on it, before it got priced and stickered and put out in the aisle.
Posted by: Ace Albion | Oct 18, 2006 at 04:30
From a game publisher and a consumer perspective, I truly wish SL receives a huge backlash from this. Whether they win or not, the truth remains that they have set up an in-game economy tied directly to the real world economy, and are outright stealing their consumers' property.
I see it as no different than a corrupt government's nationalization of private property. You build it, they will come, and then we take it away.
How can SL customer continue to invest real world money into a game where the admins can steal that investment arbitrarily, without indemnification?
It's one thing to say, "These virtual goods are/were never for sale, so the loss of deleting these goods is zero." However, in SL, virtual goods directly equate to real world money.
Burn, SL, burn.
Posted by: hikaru | Oct 18, 2006 at 14:51
Anybody have a copy of Linden's response materials they could post? According to the original complaint, the response was due 20 days after the complaint was filed. That was back on October 4th...
Posted by: Tom | Oct 31, 2006 at 15:12
Recently, the Defendants in the Bragg v. Linden Research, Inc. and Philip Rosedale case have removed my case to Federal Court. Further, the Defendants have recently filed several motions not only seeking to dismiss Rosedale personally, but to compel arbitration and transfer this case to San Francisco, CA.
Although I cannot speculate as to their intent, the effect of the Defendants' acts are to make this litigation as costly as possible for me to pursue perhaps, in the ultimate hope, that I will abandon it. In fact, in one motion filed by the Defendants, the clear suggestion to the court is that attorneys fees in this case will be exorbitant.
Given the above, I am reaching out to any of you that wish to help support this case and assist me in deflecting some of the substantial costs that could arise from these acts. The issues being litigated are important to many people participating in Second Life, as well as MMORPG generally and they should not be abandoned simply because the Defendants succeed by stretching the financial resources of a single man.
Should you wish to contribute to help deflect the costs of this litigation and help to properly litigate the matter, donations can be sent anonymously and/or confidentially to my attorneys. Any donated money will be utilized to help pay for my attorneys and costs in this case. Thank you.
Donations can be made to:
c/o Jason A. Archinaco
White and Williams LLP
The Frick Building
427 Grant Street, Suite 1001
Pittsburgh, PA 15219-6003
Posted by: Marc | Nov 17, 2006 at 12:00
Hey, I was wondering if anyone knew how to get in touch with former IGE general counsel Randy Maslow, who posted above in this thread. I'm writing a piece for Radar Magazine and I was hoping to talk to him about his role in the company. If you know how to reach him, I'd appreciate an e-mail (my deadline is Nov. 20.)
Posted by: John Gorenfeld | Nov 17, 2006 at 20:10
Basically, any and all TOSs and EULAs resumes to : " ...we reserve the right to do whatever we like , when we like, with your account, money , in-game assets and any content or informations you ever uploaded to us ". The question is : as long as there is an Agreement , a commercial contract , in wich the customer is invited to pay real $ for an internet service , does it sounds correct to you such provisions ? I believe that the Law must take actions .Whatever LL calls it's " product " , LL sells something and gets $ from customers. Hiding behind TOS and EULA is like you write with very small letters on the back of a Movie-ticket : " we reserve the right to kick you out of the Theatre 1 min after you bought this ticket , for any reason or for no reason, without compensation. " This is where the Law must interfere : one woud may NOT do such commercial abuses . Or maybe the games-developers thinks they should be above the Law and above the common sense.
Posted by: Memobra | Dec 03, 2006 at 06:20
I just posted an interview with Bragg's lawyer on the SL Herald, for those who are still interested in this:
http://www.secondlifeherald.com/slh/2006/12/bragg_vs_linen_.html
Posted by: Peter Ludlow | Dec 07, 2006 at 00:10
Pleadings on file at this link.
http://secondlife.typepad.com
Posted by: Pleadings | Jan 28, 2007 at 10:23