Interview with Bragg's lawyer

In the US , generally if you enter into a deal that says.

"If you break the rules, we will keep your initial stake"

And you break the rules. They keep the initial stake.

And the court will let them.

In the UK at least, there is a caveat which states the rules must be fair. If you can challenge the rules as being unfair, then you can get your initial stake back!

Matthew

As far as i recall the ruling of the judge in the preliminary stage was only...

that the terms of service given by Linden Lab was questionable under the laws *of the state where the court resides* because it seemed to be in conflict with the rights of Bragg under law *in that state*, and therefore the judge would allow the case to proceed.

That is *my summary only* of the way it seemed to me, reading it, and i am no lawyer. It was only to determine if the case could proceed in that state. Not a ruling on the case itself.

imogen

It seems you have better consumer protection laws over their something I wish were true here. But that is the symptom of a greater problem, not fit for discussion here.

Mmmm, it isn't in the ToS but in the billing policy:

"no money will be returned to you in the event that your Account is terminated due to suspicions of fraud, violations of other laws or regulations, or deliberate disruptions to or interference with the Service."

Bragg could take a number of arguments here (and appears to be doing so):

a) that this part of the ToS is unfair and unenforceable - that any outstanding monies once LL has deducted any outstanding liabilities due to it, should be returned to the customer unless ceased by law enforcement agencies regardless of the reasons the contract was terminated

b) that Bragg did not commit fraud, violate any law or disrupt or interfere with the service - he merely accessed a publicly accessible web page (and suspicion of fraud is too vague a criterion). LL has a difficulty here since implying that fraud or other criminal activity has taken place opens them up to slander (and indeed has done so), and any claim of disruption or interference is weakened by LL inaction on landbots which arguably do inworld what Bragg did offworld.

c) that this part of the ToS is in contradiction to the advertised claims of land ownership, and hence LL is guilty of misrepresentation and misadvertising of the service they sell.

Matthew

A few points.

First, while it's clear that UK law would not apply to Bragg, it certainly would apply to LL's UK customers. Courts are *very* reluctant to cede jurisdiction in cases of consumer protection type claims where the claimant is resident in the jurisdiction, regardless of what the governing law of the underlying "contract" might be (here the TOS, which is governed by CA law, if I'm remembering correctly). So while Matthew's comments are not really applicable to Bragg, they could certainly apply to a UK version of Bragg.

Second, the protection statutes haven't been very well tested in the US when it comes to online "gaming". The main reason for that is that, in the case of most games, the amount involved that a "gamer" (typically that would be the claimant) would be claiming is very small relative to the size of mounting a lawsuit against the likes of Vivendi or Sony. SL presents a somewhat different situation. There are some (probably a handful really, but they exist) participants in SL who make a *lot* of money off of this, and have real damages if LL were to simply try to enforce the TOS on them verbatim. If LL were to get into a tussle with one of them in court, it would be very interesting to see how various provisions of the TOS would stand up under some of the more aggressive consumer protection statutes in the various states.

I see.

So ...

basically since LL cant really prove Bragg committed fraud - when in all probabilty he did.

Then they should have to pay him for the property he couldnt sell to recoup his losses.

I guess I can see that logic.

---------------

However Im really convinced what he did was fraud. So the idea of paying him for siezed SL assets would be pretty hard for me to accept.

The legalities of SL seem to me the real reason they have to move to Open Source. It literally is a minefield.

Yes it's very risky for them. It's very, very hard to comply with the laws of all the places where SL is being accessed from one central platform in California (and Texas). LL is seeing just how challenging that is. This is one of the reasons why most service providers have more localized/regionalized service levels, so that they can conform, to some greater degree, to local conditions and legal requirements. As far as I am aware, the only thing like this for SL is the SL Brazil platform.

If LL has sufficient reason to beleave Bragg committed fraud (and a coherent argument can be made that Bragg no more committed fraud, than someone spotting that an item in a supermarket has been mispriced and taking advantage of it, or the people who have successfully bought $1 camera etc. from Amazon due to mispricing mistakes), then they should have sufficient evidence take out a criminal case against him.

If it is merely suspicion, then they should done as described in their billing policy - auctioned off his assets (or at least those purchased "legitimately", deducted any outstanding funds due to LL and an administration fee, and given any remaining funds to Bragg. LL wouldn't have made a loss. Whether Bragg would have made a profit or loss overall would have depended on how well the auctions went.

Matthew

The up front fee isn't for the purchase of a rack unit. It's simply an administrative setup fee. LL may use your setup fee to purchase hardware, but nowhere in the contract is it stated or implied that the land purchaser has any ownership claim to physical hardware. You're simply purchasing useage rights to some of the computing capacity of hardware that LL owns. If you reserve server space from an ISP for creating a website and through breach of contract have your service terminated by the ISP, they're not going to remove a physical drive from the server and mail it to you or sell the drive capacity to someone else and give you the money earned, and no one would expect them to. Nor are they going to give you an easement to visit your drive space. That would just be silly. Some people think that SL land should be treated differently just because it's a virtual representation of land instead of simply storeage capacity on an ISP's server, which makes no sense.

I disagree on the finer point.

It may be LL cant prove he committed fruad.

That doesnt mean he didnt.


What ihas being described what he did - Opening auctions on something he didnt own and benefiting by them, would be fruadulent.

Its not the same as finding something mispriced on the shelf at all. Its closer to finding an unattended price tag maker and making your own price tag, and then making a purchase. Which is fraud.

Failure to pay rent doesn't automatically make your furniture the property of your landlord.
(already answered by Matthew... but I wanted to get my response in too. )


I would have handled Bragg thus:

"Fine... keep your ill-gotten sim, for now. But recognize we reserve the right to refuse service to anyone for any reason. We will accept no further payments or business from you. You have the remainder of your billing period to liquidate your assets and evacuate. Should you choose to release that sim back to us, we will re-imburse you the US$300 and we'll return your account to good standing."

I did notice today that the SL front page no longer says "own your own land". It says "get your own land". Even as recent as when I joined in Nov 2006, SL was clearly marketed as an environment where you could "own" things, including land. It was also marketed as a different kind of non-game. Take these two together, and I think it's reasonable to say that it was actively marketed not as server space rental, but a new paradigm where actual ownership was central to the concept. Maybe the tech/net-savvy folks would immediately see that this wouldn't be that clearcut, but for an "average consumer", I don't think it's something that can be assumed. I would be interested to know what all the TOS-type documents and whatnot said at the time this all occured.

Why are so many people working so hard to rationalize about this sleazeball and seek excuses to let him off the hook? If I were LL I would have done the exact same thing, and assuming LL wins in the end, would go after him for damages to recover the cost of the lawsuit, plus enough punitive damages to ruin him financially. Otherwise, if a lawyer can take a shot at something like this in hopes of a payoff at little or no cost to himself, there are only going to be many, many more Braggs running up LL's legal costs. (Hhhmm, could that possibly be it? Wannabee Braggs trying to keep their dream alive?)

It doesn't in this case either, but since the furniture can only exist inside that particular apartment, you still lose it. If Bragg had intellectual property connected to that furniture, like they were original designs he created himself, LL would make no claim to those designs, but he would no longer have access to their representations within SL.

I for one couldn't care less as to what Bragg ends up getting or losing in this. Bragg isn't exactly a popular hero type figure since what he did was sketchy at best. However, this is the case that exists and as such, the principles that come out of its resolution are important. The worst thing that could happen is that the case gets settled out of court and we learn nothing. A lot of people have invested a lot of time and money in SL, and might benefit from legal protection from arbitrary LL actions. On the flip side, if we find that LL actually can legally do pretty much anything any time they want, that's useful information too.

No but violating your lease usually means you forfiet the security deposit.

So many are trying to link this to what the bots do. That is far from what happened in this case. Bots only function if the offer for sale has started. No matter where hidden or placed the object still is marked for sale and with a simple data search can be found and purchased. If you enter all the data on your object/land that a sale need to have but never check the box that marks it for sale, bots or any one else can't buy it. What happened in this case, yes the data can be simply found for the land sales by a data search\back browsing but with one big difference, the offer for sale had not been made and the auction making the offer had not been started. Bragg started the auction by his action even though he was not the owner of the land. LL never initiated the offer for sale and as such this is the point likely in court that will be the key to any decision. The rest of the findings will likely not matter at that point, but both sides will win on some smaller points. The question then becomes, was the act criminal and will a prosecutor take up the case.

If he'd paid on the spot I'd agree with you, but he started the auction process. As LL actually acknowledged his bid and congratulated him on winning that auction, I think they may struggle on the fraud angle.

If he'd had a friend on the inside within LL who had helped him with this process, then I'd see it as fraud.

I doubt the acknowledgement will have any bearing since it's an automated process that Bragg deliberately subverted.

and once he initiated the "auction" - fraudulently-...there were NO competing bids...

surely that is not the "spirit" of an auction process?

the major points he will lose...no way LL lawyers aren't good enough to make those points clear to even the most uneducated jury...

The question is still open as to whether the auction was *fraudulently* initiated. Bottom line is:

o the auction page was put onto the web by LL
o there was no protection mechanism in place preventing *anyone* from accessing the page
o the page was set by LL to accept a bid and start an auction
o the minimum bid set by LL was $1
o LL billed Bragg after the auction was completed

So we have someone visiting a public page, finding an auction there, bidding on the auction, and paying for the resulting sim. Where's the fraud?

Let me guess - Bragg - you know him.

Never met the man. However, I've read all the court filings and find this set of facts to be persuasive. Now, I'm not saying what he did was *right*, but I am saying that what he did certainly doesn't constitute fraud.

I'll also state that LL has placed themselves between a rock and a hard place. They either need to admit their marketing rhetoric was bullshit and nobody owns anything except LL, or they'll need to admit they converted Bragg's proprty without right.

Thank you. The Bragg / Bot comparison has been irking me too.

Bots pay exactly what the owner (accidentally/ignorantly) set the parcel to sell for.
Bragg set an uncontested price on land that was not yet intended for release.

Sellers in both cases made different errors, and the snatchers
bent different ethical rules in taking advantage of those errors.

It may be karma swatting LL for doing so little about landbotters.
But I've no desire for some con-artist to profit from LL's negligence.