He's actually suing LL?!?

For the record, I agree that what this guy did was ethically wrong, legally shaky, and possibly against the rules of professional conduct for his state bar. I'm just trying to provide a counterbalance to the angry mob to try to get people thinking and not just *reacting*.

Wow, you could have fooled me...well actually you DID fool me.

OK, so we agree that what he did was apparently NOT inadvertant and innocent. He purposely and UNETHICALLY exploited a mistake or hole in the system for his own gain and at the expense of others (LL in this case).

That's a start. Anyone else out there want to belabor the ETHICAL nature of his actions still?

And there is good reason for us to be furious...

I take it most of us actually LIKE having access to SL? People like this guy do not contribute to the stability and security of SL. In fact he does just the opposite; he financially damages LL thereby risking the availability of SL to those of us that enjoy being there.

He isn't just taking money from some huge corporation that won't notice it...thinking he can hide his clearly UNETHICAL actions behind financial insensitivity (like insurance scammers do). He is directly contributing to the financial imbalance of LL.

Consequently he is hurting ALL of us here.

Perhaps every freaking idiot knows it is 12 dollars and not 12 cents, but in many law systems, once an employee verbally states that is the price, the company is legally bound to either honour that price or else withdraw it from sale entirely. I'm no expert on californian law, but possibly a similar rule might apply. Law and common sense rarely have much in common.

Well, at least one website has picked up the story... http://arstechnica.com/news.ars/post/20060510-6794.html

P2

Can't speak for the US, but here in the UK... the price is finalised at the till, and they are NOT legally complied to honour a mis-labeled price tag.
Oh, and it's a crime to stick your own price tag on something, then attempt to purchase it...

But this is in the UK, maybe the US does it differently...

Except they never did price it. It was sitting in the back storeroom waiting to be priced and set up for auction.

Yup, same in Australia (recieved British Common Law), it's not considered an offer, merely an invitation to treat (Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB 401). Does anyone know the actual law in the US that would apply in this situation?

Well. That explains it. Of course an ambulance-chaser would leap at the chance to sling some legal mud. Though I wonder if this does go to trial whether the judge will laugh and dismiss the suit as frivolous.

2.6 Linden Lab may suspend or terminate your account at any time, without refund or obligation to you.

Linden Lab has the right at any time for any reason or no reason to suspend or terminate your Account, terminate this Agreement, and/or refuse any and all current or future use of the Service without notice or liability to you. In the event that Linden Lab suspends or terminates your Account or this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees, any content or data associated with your Account, or for anything else.


That TOS clause right there --^ will get his suit thrown out quicker than you can say "Supersize me!".

One would think, him being a lawyer and all, that he would've bothered to read the TOS he signed into before suing.

Either that, or a judge will rule that clause of the TOS to be invalid.

As I've said before, just because something is in the TOS doesn't make it binding. I mean, seriously, does "we can kick you out whenver we feel like it for no reason at all, keep all your stuff and not refund the money you've pre-paid to use our service" seem like a term someone would willingly agree to if there were an alternative service to SL you could switch to?

A "lack of consideration" ruling on a TOS/EULA would not just cause major problems for LL, it would cause uproar across the entire software industry.

.. And as such, it's probably not likely

Has such a clause ever been challenged in court before? This would be a significant result if this were to proceed all the way to a decision, regardless of whether the clause were upheld or voided.

But LL does not have to use such unfriendly terms to safeguard themselves from abuse.

With only a little extra effort, they could create catchall terms and conditions which underline that they are a responsible corporation which does not arbitrarily "execute Second Life inhabitants" (I'm using that phrase on purpose), on a whim and without comeback.

The problem currently is that "on a whim" is exactly what they are claiming as a right, in only slightly different language. It's just a matter of perceived company ethics.

The "on a whim" is actually intentional.

Yes, it was exactly those UK invitation to treat laws I was thinking of. If this were under UK jurisdiction, LL would be forced to either honour that mislabelled price tag, or stop selling any land at all for a set period. They wouldn't actually be forced to sell at that price, but the enforced no-sale period in itself could potentially be damaging.

I did my retail 'time' here in the US: Same deal. The store/seller is not *forced* to honor a mislabeled price tag. Errors happen, and there's no liability for that.

It's one of those common misconceptions about retail in the US:

1) "If it's priced lower, they must honor that price"

-- No. This was just done by some popular chains as a courtesy. It isn't law. If the "1" gets scratched off of a $1000 item, or the label's printing is munged, they do not have to give it to you for free.

They *DO* have to rectify the error, and if it's found that they're performing a "bait and switch" operation, or that they are using the mislabeled prices to mislead and attract buyers, then yes, they can, will, and *have* gotten in legal trouble for it.

But they are not forced to sell at that price.

2) "If there is not a sign declaring 'NO RETURNS' stated, they must take it back."

-- No. No retailer has to take anything back. It's all a matter of policy.

And interestingly, maybe applying to LL here:

3) "We reserve the right to refuse service to anyone, for any reason"

-- In most states in the US, illegal. You cannot reserve a right you never had, and if you are opening your shop "to the public", you must serve the public without discrimination in regards to race/religion/gender, etc.

I can say "I reserve the right to shoot you in the crotch", but I never had the right to shoot you in the crotch in the first place. So I can't "reserve" it.

Now, interestingly, you *can* say "I refuse to serve you because you're a jerkwad", but note that is not "any reason": that is one reason. You being a jerkwad. There are specific reasons where they can *not* refuse you service.

How this would apply to LL isn't clear; I have a feeling that the laws between public retail areas and online services vary drastically.

Even if so, however; while LL couldn't neccessarily legally refuse service to or terminate the accounts of black people, they can indeed terminate your account if you are a jerkwad.

As far as I know, assfaces are not a protected group in any country.

I really hate to be the bearer of bad news... but take a few minutes to look over the TOS/User Agreement etc. that comes with your bank accounts and credit cards, not to mention many other ongoing service contracts you may have such as cable and phone services.

For example looking over one of my bank credit cards... there is a clause stating they have the right to cancel my account without notice and reading further they also have a clause stating they can remove money from any other account at that institution to pay for the card that they can cancel at anytime also without notice to me. Those heavy handed types of clauses have been around a long time (but since few people ever read a TOS/User agreements most don't know it). Do you honestly think they haven't been tested by law.

Clauses like that are how companies protect themselves, many prefer not to invoke it unless they see no other way, but they still keep it around. It is very unlikely to be overruled and if it was it would send shockwaves through more industies than just the online software industry.

Also don't forget that LL can store anything and everything you say in SL from day one. (Not sure if they do or not, but would make sense for them to, in order to protect themselves from law suits such as this one) If there were any IM's or other convo's about how to cheat/beat/ or exploiting the system it could very well be in LL's database, which would be very incriminating.

Well, that makes sense. But does your bank reserve the right to keep whatever is in your account if they decide to close out your account, for any or no reason? That is more analogous.

coco

It is and isn't at the same time

The same "cancel at anytime without notice" clause does appear in my Bank user agreement. Banks are also bound by more regulation than most consumer companies, but if you get into the realm of fraud, moneylaundering etc then you are getting into freeze territory.

Actually many of those boilerplate clauses can and ar over-ruled. Contaracts are construed against the drafting party, and "accept this or else" agreements are sometimes found to be adhesion contracts.

In these cases you often have to look more in depth as to what the particular understanding and particular issues are. Simply reserving th right to terminate service at anytime doe snot really exclude service providors from conducting themselves in a manner consitent with consumer protection laws. Its not unthinkable that a court might strike down a clause where service that was paid for was cancelled with no refund.

I would not relay on any clause as iron clad, particularly not in a softwear licence were ther eis no choice but to accept terms and no real negotiation. But then thats why we have horse races.

The signifigance of this case to me is whetehr the Penn Court will hear it. that fact alone is relfective of innovative issues involving jusrisdiction. It also means virtual transactions in SL could be subject to the consumer laws of the states the residents are in.

No they wouldn't - there are all sorts of cases here where online retailers have set something at the wrong price, missing off a zero or similar, and they are not obliged to sell at that price.

I was thinking to myself what would happen to LL and to SL if the litigant won his case in court, and then his example was followed by others, and then the trickle of scummy vultures (or affected businessmen) turned into a torrent.

The simple answer is, the Lindens probably can't afford the drain on their bank balance nor the waste of their time. If things got really bad, they could even be forced to close down, or at least to make the L$ no longer convertible to US$ so that no RL businesses could be impacted by their actions. But that itself could well destroy SL, at least along the present path which is very player-business oriented.

One possible solution might be to be bought out by a megacorp, so that the "justice by the dollar" legal system would ensure that no litigant would survive the battle against a legal department of 500 lawyers and barristers of godlike eminence. Unfortunately, as the saying goes, there ain't no such thing as a free lunch, and undoubtedly there would be bad things as well as good to come from this.

Anyway, whatever happens, LL *must* close down the opportunities for litigation. If this kind of thing happens again any time soon, it's disaster in the making.

PS. And you can't prevent suits by creating ever more draconian Terms of Service. Lawyers will try their luck against anything, hell it's a challange, and the more draconian the clauses, the more likely they will be judged as not binding through being unreasonable.

I mean . . . keep . . . permanently. Like LL does if they close your account. That banks and other places can't do. The people who hold our mortgage can't decide they don't like the way I talked to another customer in their office and confiscate my whole house.

coco

I think you missed the second part of my post that you quoted. I'd hardly equate "fraud, moneylaundering etc" with "sassing a customer in the office", nor would I consider what Mr. Bragg (since this post is about him) did as in the same league as "sassing another customer".

In all honesty I don't think LL locking down his account was all that unreasonable since a case can be made to the effect that he was defrauding (for lack of a better word atm) them. If someone was ripping you off in some way, would you not do everything in your power to stop them or just go "gee, can you please stop that".

For the record I still favor LL just giving him back what he made prior to the server sale issue and permabanning his credit cardsand letting him know he's not welcome to come back.

Of course LL wouldn't be forced to honour that mislabeled price tag since it was the customer who decided to stick his own price tag on there.

That is what is missed so often... LL didn't mislabel the price. He snuck into the storeroom, stuck his own pricetag on the goods, then tried to force LL to accept that pricetag. No law anywhere would force LL to honour that price...