Bragg Case

So, it appears that the LL TOS is illegal under US law, and anyone who has had a character deleted for TOS violations can now sue.

I can't help my curiousity, does anyone know what loophole Bragg found?

Yes.

I think it was explained somewhere in this thread: /327/b4/187911/1.html

The section requiring binding arbitration was one sided giving LL too big of a hammer. I don’t think the whole TOS was thrown out however, only that section but I’m not sure.

Maybe lawyer types can correct me on this

the TOS isnt a law .. a Judge doesnt make it illegal. A Judge only decides whether it applies to the case in question.

Its not a law that can be declared unconstitutional and a Pennsylvania Judge doesnt have the power to void contracts in other states / countries.

Thats my understanding anyway.

Many companies (M$) uses similar agreements. One company even claim they have the right to take ownership of any work created with there product (lol). It's not the end of the world.

In the other thread on this topic, it was said only the arbitration section was declared null.
Most "fine print" also has a section saying that if one section is held to not be valid, the other parts are still in force.

The judge ruled the bit regarding the arbitration a "contract of adhesion". In other words, because we can not negotiate with SL, it's unfair that we have to accept all of their terms.

I think this ruling means that you can properly file a suit and expect your day in court.

Whether you will win or not, is another question.

It's Not really a loophole, it's a basic precept of contract Law. A One sided Contract Isn't a Contract.

LL has attempted to represent TOS as a contract But If All the terms and conditions are imposed by The party of the First part (LL) without negotiation, or mechanism of redress for the Party of the second part (The client), it simply isn't a binding Contract.

LL says "These are the terms and conditions, and if you feel We have violated Our side of the Contract you aren't allowed under the contract to Sue us". It's basicly a contract Only the SL Client must obey. The Judge in this case has reaffirmed that LL Does bear some responsibilities under the TOS and if they do not live up to them, They ALSO can be penalized.

That's how it reads to me.

Angel.

In addition, the TOS was deemed unconscionable for passages like "Linden 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."

I always said that a policy of "first we sell you land, suggesting that you gain ownership, then we take it back and sell it to someone else and also rob you of your money that is tied into SL as well as the content you created" can't possibly uphold in court. It would be outrageous if a company could get through with it.

I broght this up in the other thread about this case, so I am going to ask you this question -

You think it should be that anyone can spend thousands of US dollars on land, do something that violates the TOS, then get their money back?

What's to prevent someone from intentionally getting banned to get thousands refunded after using that land to make lots of money? LL should be out all the money because of a scammer?

It'll be interesting to see whether this stretches as far as those who have received other punishments that have restricted their access to parts of the Second Life service (in-world, forum,blog) without proper justification or appeal process.

After all, there are no discounts to the monthly fees if you aren't able to gain the full benefit of the package you are paying for.

Broccoli

But they made us click "I agree"?

Of course we had no choice, we could either agree or never see our inventory and our friends again. I felt a pain in my heart when I clicked "I agree", but now I understand there is still hope?

I guess the big difference is that, most online games, you just pay your monthly fee, and if you are locked out all you really lose is the hours you've invested in levelling up your character.

The difference in Second Life is that, although in those ways it's just the same, many people invest hundreds if not thousands of real money of their particular currency in additional money, on land, purchases etc - all of which could be taken away simply because of a badly handled fake abuse report.

Broccoli

It's tough for LL, but one can't sell something and steal it back without refund. I don't see a scam from the customer's side if he's forced to give the bought product back and is reimbursed. But it's clearly a scam to sell a product, take it back without a refund and sell it again to the next customer.

If you agree to a TOS that has no legal basis or violates your customer rights, the TOS is null and void. For example, many tenancy agreements in Germany contain a clause which forbids the tenant to keep pets. This clause is automatically effectless, since German law explicitly allows to keep pets up to a certain size and amount in apartments.

The question is also at which point you accept the TOS. You don't have to accept it when you buy land. It's no agreement for sale. You only need to accept it in order to use the grid in general. Land ownership and grid usage are two different things, imho. Of course I have to be able to access the grid in order to use my land, but if my account is banned from the grid I still own something I previously bought. If that property would be stolen and resold, LL would violate my customer rights.

This is in fact exactly the argument that Bragg is making - that at the moment he bought land, he entered into a whole additional contract of sale with LL, and the TOS wasn't part of it. He's then arguing that although LL can ban him and take away under the TOS, they can't do so under the secondary contracts of sale.

Probably the logical thing for LL to do, if his challenge holds up in court, would be to ban him from all land he doesn't own.

this is the land he stole by hacking into the website manipulating the auction? or this is another case?

I think this is the land he bought legitimately before finding the auction loophole.

Bragg has also argued that a Linden told him about the auction loophole, thus making it authorised. I'm not quite sure about that, since there is usually a "common sense" rule in law. I know that some people who bought large plasma TVs from a faulty online store in the UK for 5 pounds each, had their orders cancelled (they got their money back, though) on the grounds that a 'normal person' would know this was a mistake.

LL wouldn't be "out" all the money. They would still own the server that the person "bought". And if they refunded the person, they would be free to resell it again.

My opinion.

Yes, it's that case. Bragg owned a substantial amount of land BEFORE the exploit (he had been an active land trader) and that was taken away from him as well, along with his entire L$ balance, not all of which was earned by selling the exploit land.

I don't think many people dispute that the land involved in the exploit should have been taken away from Bragg, along with enough L$ or US$ to compensate for the land that had already been resold to other residents. (LL allowed those other residents, who had bought the land in good faith, to keep it.) Even Bragg himself isn't attempting to claim that he is entitled to that land. The Bragg case raises the question of whether LL was justified in seizing UNRELATED assets, and whether the TOS clauses that allow them to do so are fair.

The TOS that were in effect at the time of the Bragg exploit were less harsh than the current ones. That version said that if somebody was removed from SL and owned land, that they were entitled to the revenue raised by reselling the land at auction, minus a US$100 reselling fee. (All other in-world assets, including L$, were still forfeit. I don't believe that the TOS addressed US$ balances with LL at all.) The current TOS, which took effect two months AFTER the Bragg exploit, says that people can be removed from SL for any reason, and are not due any compensation whatsoever. If the court struck down last year's TOS for being unfairly one-sided, it's hard to imagine that they would be more sympathetic to the current version.

So he is sueing for compensation for the land that he didnt swindle?

Or did he receive that?

You're being deliberately inflammatory. The "exploit" was nothing more than entering a URL by hand rather than following a link.

Big. Freaking. Deal.

By the book, Bragg did nothing wrong. Guessing a URL you don't know based on URLs you *do* know is 100% legal. There is a California legal decision that states as much. A Linden employee told him how to find the auction number to put into the URL. Typing the URL took Bragg to a public page that was ready and able to process an auction bid. So he bid on the auction he found. So, please explain how he "swindled" land.

All the Bragg haters out there throw around terms like "exploit", and "cheat" without bothering to mention the truth of what happened.

The auction number could not have been guessed based on other auction URLs. And I thought there was also a legal precedent that a sufficiently obsure URL can be considered a form of password?



He broke the common sense rule. It's obvious you're not supposed to buy a sim for $2.

The auction URLs ended with something like "&s=123456", where "123456" was the auction ID number located in the land description. Not at all obscure.


What about $20? Or $200? Or the $300 (IIRC) Bragg's auction ended at? LL was very careful to emphasize that "by making a bid you are entering into a binding contract to purchase", yet they place no-reserve auctions onto their live site. And, quite honestly, 70% off a sim that has already gone through auction without being bid on doesn't seem that crazy to me.