web sites, business ethics and entities

In a recent thread we were asked about SL-related, web-based businesses. Before it deteriorated into the typical forum pissing contest it was an interesting read. Having owned and managed several web ventures I am always interested in how entrepreneurs are able to capitalize on the access the web gives them to the world. Other threads have brought up legal topics so let's combine the two.

When I visit any commercial site I pay attention to the little things that seldom are noticed by the average site visitor. I recently visited a web site run by a well-known person in SL and read their web site disclaimer. I don’t care if they hired F.U. Bailey (older Stern fans should get the reference), this disclaimer would not hold up in any court of law. The disclaimer...

"XXXXXXXXXX.COM, its agents or employees shall not be held liable to anyone for any errors, omissions or inaccuracies under any circumstances. The entire risk for utilizing the information contained on this site or linked to this site rests solely with the users of this site."

...carries no weight at all. Is XXXXXXXXXX.COM incorporated? A legal partnership? If so, where? If not, who is XXXXXXXXXX.COM? You should not throw out a legal disclaimer that pretty much says, “fuck you, you are always wrong, we are always right,” without listing the entity behind it. You certainly have the right to throw out whatever you want but there are consequences behind it. If a company is D.B.A., XXXXXXXXXX.COM, fine but there is no indication to where dissatisfied customers can go for recourse. An SL avatar is not that entity.

Oh and BTW -- if the above disclaimer would be found to be invalid would the "agents and employees" be immune? And, totally aside from the web discussion; if the web site owner is representing that they have agents and employees; what happens if one of those employees does something while working for this person? Can we go after the individual (or corporation if there is one)? Talk about fucked up! This raises all kinds of questions.

There are also trademarks and copyrights listed on this site but again, the entity that appears is an SL avatar. If I decide to lift all the content off of that site; who is going to come after me? Someone claiming to be an avatar? They would have to present themselves to me as the appropriate entity when they send their cease and desist. They could do it through a proxy but one could easily challenge and force them to give up the name (entity) of the rightful owner. So, those of you who have time on your hands could test this theory out *wink wink*

Who is LL going after if the person lifted content from their site (which this person did)? You know damn well if LL takes a financial hit because of it, they will use the personal information they have go straight after them. Most web sites (certainly reputable ones) have a 'contact' page for just this information (and not just "IM me in game" as their contact information). If you are that shaky about having corporate or personal contact information listed, consider another line of work.

If you signed up for Second Life and decided to intertwine second and real life, you need to be prepared to deal with the consequences. In world I may be stuck with a lemon I bought from Avatar x but once you establish a web presence it is much easier for the consumer to take action against the web site owner and registrant. Regarding the above mentioned web site, it would have to be the registrant who would have to give up the avatar since we know LL won't do it.

So, if you have a website for pics (Snapzilla? Nice site BTW) or something non heavy commercial, this is no biggie. Sites with blogs or personal pages are good examples of sites that can be personal and “avatar driven”. But if you exchange money, sell large items and represent yourself as some sort of company when you are nothing more than a person represented by an avatar, attempting to cover your ass, be wary. If the shit ever hits the fan, you will have little legal protection. Regardless of what side of the ocean you are on.

Wll part of the force of a legal disclamier is if you agree to it. Its not a very well written disclaimer, but if it is presented in a conspicuous fashion, your use of the site might actually bind you. After all you can make a bad bargain, or agree to a foolish waiver. And it protects them..allows them a away of saying we are not responsile for misue or for damages caused by inaccuracies.

More meaningful is the notion of "what harm has been done?"

True and good points but the binding issue is in question when the entity misrepresents itself. In this case the representation is that of a formal business structure with employees and agents. I believe that in this case it is a misrepresentation.

That is a misconception that a lot of folks have: "If I have a waiver or site agreement that people need to agree to, then I am safe because I can make whatever rules I want."

Okay, tell you what...

Message Agreement:
This message is owned by Me, and by reading it in part or in entirety, the reader has agreed to grant to me irrevocably a sum of ten (10) Linden Dollars per word read in the main grid of Second Life.

I can see the L$ rolling in now! Well... No.

This is not an enforcable agreement. I have no way of knowing who has read it, nor do I have any way of 'forcing' them to pay me the money.

Now, let's take the other example in case:

"XXXXXXXXXX.COM, its agents or employees shall not be held liable to anyone for any errors, omissions or inaccuracies under any circumstances. The entire risk for utilizing the information contained on this site or linked to this site rests solely with the users of this site."

Right... So, they decide to go onto the site and, say, do something REALLY stupid... Like, say, criminally stupid (Literally criminal). Do you think that law enforcement is going to go and say "Well, they broke the law, but they have this cool disclaimer that says they aren't responsible for it, so we'll have to let them off."? Nope. They'll still have swat teams busting down their doors and if they wave the disclaimer at them, they'll be shot for brandishing stupidity.

For reference, the ONLY way such a disclaimer works is for passing off liability for content that you did not originate, and it ONLY works if Due Diligence is followed. Basically, it means that if I make a site with a proper disclaimer, and Joe Schmoe posts something wrong on it, and I was not aware of the mistake, and somebody tries to sue me over it, or press criminal charges over it, I can say "I didn't know, it was Joe Schmoe. Go get HIM instead." However, Due Diligence means that if they can prove that I -DID- know about it (They inform me about it, and I tell them to bugger off, for example), then I am an accomplice, and no amount of disclaimer will protect me, no matter HOW many times it was clicked on.

Make better sense now?

I never said you were safe just because you put a waiver on it. But the example you cite. Correclty, does center around acutal misfeasnace. You can't by operation of waiver, waive your right to sue based on fraud or other intentional torts (nor of course can you waive criminal penalites..but thats not the issue). My point is that you can't ever agree to anything and say..oh that is a load of crap cause the waiver is meaningless.

And yes you are right about the bargain, but your example is extreme (But I would happily join you so we can get rich together...). The disclaimer serves a fucntion as notice of a condition should a user sue for damages based on content (again not talking fraud or criminal). In other words: A say i post on your website (which you have, against my better advice, used the disclaimer in question) that I am offering a million linden for 2oo dollars. Somone comes in and pays me the 200 dollars, and I can't deliver. Well that waiver would be your shield against a general negligence claim because you have specifically said you make no representations as to the content. Even though the language is week, the fact that they used your site and conducted business on it suggests that they accepted the bargain (yeah there is an adhesion contract argument in there). In otherwords they will have to prove you did something that constitutes a misrepresentation or as you stated criminal activity. hence the waiver is a protection.

Thus you are correct in that a waiver does not let you do whatever you want, but nor is it something that can be utterly ignored. Its like a swim at your own risk sign at a public pool. Now business ethics and all of that do factor in. Fraud is fraud. And crime is crime.
Of course even with a waiver you may be sued and or investigated for your involvement with the actions of others, but they may invetigated before they arrest you.

Also keep in mind (for those of you reading) these are broad strokes and differing jurisdictions interpret it slightly differently. And some of the technicalites are insane: In California a waiver must be in at least 10 point type to be considered legible..lol ( though that does contemplate a documentary waiver).

((are you an attorney?))

Uhh, DCMA (DMCA) is a pretty powerful tool. yet to see an ISP ignore it.

Also, suing for anything on the web that is under $500 is impossible if you're looking to get your money back.

If you're just looking to harass, I guess you can, but you can harass for a lot less money than that.