Bragg Case

Isn't he a Lawyer? Exploit and cheat are probably familiar terms to him......

(Sorry Susanne)

I dunno - I've got little sympathy for Bragg because I had my own experience where I was on the short end of the stick.

Back in 2005, there was a large, adjacent parcel to the Shelter that I had my eye on. I had friendly conversations with the owner that if he ever wanted to sell, to please ping me.

Several months later, the owner of this parcel ran afowl of Linden Lab, for some sort of accounting reason. As a result, all of his land reverted to the Governor, and he was out of Second Life. Fine, I said - I'll grab it at auction when it comes up.

Problem is, it never came up. Due to a similar sort of exploit, someone else was able to trigger an auction, and get the land for US$0.01. No one else was even able to bid on the parcel.

Once the new owner got it, he ended up selling it to me for $6/sqm, which, for 2005 - was a little above market value, but not an unfair price.

In the end, I got the land, and everything worked out okay. But its always irked me that I was unfairly locked out of the auction process due to someone else leveraging an unintended technical loophole. It also tells me that manipulation of the auction process has been going on long before Bragg ever got involved.

Part of the argument Bragg is making is simply a semantic ploy. He argues that since LL claims to "sell land" and the buyer "owns" the land, then it can't be taken away from him because he legally owns it. I can't imagine that argument holding up in court since anyone with more than two brain cells to rub together understands that what they're actually doing is renting land from LL on a temporary basis in the same way you'd rent server space from an ISP for hosting a website. Personally I think it's a mistake for LL to call it land ownership when it's really not, but no one, not even Bragg, honestly believes they actually own the land. Common sense says otherwise. If LL were to go out of business are they going to send everyone the server that their "owned" land is on? What Bragg is doing in the courts is exactly what he did with his URL hack - attempting to exploit loopholes for personal gain.

Reasons why LL should drop those asinine blurbs for the website.

He would probably have noticed at the point where it wasn't listed on the main Auctions page or where no-one apart from him bid. There were perfectly clear signs that he was not supposed to be obtaining land that way, which he chose to ignore. And, I don't know about the US, but in the UK the "plasma TV" case basically says that if it would be obvious to a reasonable person that a website or other automated system was malfunctioning (eg, by offering plasma TVs for 5 pounds), then anything it says while malfunctioning has no meaning, no matter how legalistic the language it's couched in is.

Actually, I think he's basically saying that too - that they shouldn't use the word "owned" if they don't mean it.

The whole economic premise of SL is based on this idea of buying and selling though, and I think that most residents have a sense of "buying" and "selling" things in SL that extends beyond just renting. Not that I disagree that ownership in SL is not the same as RL - you can't take your hair with you when you leave - but it's not really the same as a rental either. If everything is a sort of rental, then what am I paying for up front? Reservation fee? Admin charges? License rights?

I think that a lot of people who are shelling out $1675 US, which is a pretty substantial sum, presume that they are going to "own" something, and not just rent it until some undetermined time period elapses.

Especially if the website advertises the item as something they "own".
Exact wording from the Land Store: "When you outright purchase a space for USD $1675 you get immediate ownership of the region. The location does not go up for auction, and your future island goes there (with no further cost other than the monthly maintenance fee)"

The terms "outright purchase" and "ownership" denote purchase and ownership, not "rental" and "hosting".

Especially considering the new international customer base LL is pursuing, who may not speak English as their native language.




Again, just my opinion.

But wouldn't this end up with all of us having some protection for the value of our virtual property? To value the time, money and work people put into their work in SL? If we are creating the content that is bringing in more residents, doesn't giving us the assurance that our art has value here?

Did he or did he not sidestep the officially published land buying process?

Yes or No?

How is this different from landbots profiting from a mistake when a resident is selling land? Where is the line drawn when it is just competition and everyone ups their game or an exploit?

Could be content creation? If you create content for a website, you can get paid for it and also copywrite it. If LL rents us the server space it does not own the content we create on it.
Or the content we buy from someone else. As an artist in RL, if I do a portrait, I don't expect the clay provider to determine the worth of what I make. The minute I sell it, the worth has been decided in the market and we do have a market in SL based on real money.

Wow thats an interesting point. So LL can claim that the website was malfuncitoning, sure... but what does that say about the rest of their service, including the function where a TOS or supplemental land contract is displayed and agreed to? Can LL have it both ways? Can they say well, this part was malfunctioning but this other part was not? Do they get to draw that distinction?

Well first you're combining two things that are treated differently. You own the intellectual property rights to your creations, not the virtual representations thereof. So, let's say you created a cool game like Tringo. LL can't take the rules of your game and create their own and sell it as a seperate product. Tringo is a perfect example since the creator sold the rights to a third party who then created a handheld game version. That's different than land, since all you could possibly ever have is the right to use that land as long at it exists, you keep up the tier payments, and don't run afoul of the terms of service. LL can't possibly be liable for a monetary value on land or content items. It would render their business model untenable. If they had to go out of business, they'd owe every SL participant the monetary value of their assets. That would be an astronomical sum that they'd never be able to pay. When you "buy" something in SL all you're acquiring is the right to use that thing while SL exists.

Tsk, tsk....and I THOUGHT you were my friend!! LOL Still want to go shoe shopping? I KNOW where to get some GREAT shoes!!

We lawyers deal with exploits and cheats every single day, some [unfortunately from a minority of other lawyers - you never read about the good ones - some from clients] I don't know enough about Bragg and what he did to offer any opinion, other than to say I personally wouldn't do it. It just wouldn't pass my persoanl "smell" test. The court will decide eventually.

What the court has decided, in addition to permitting Rosedale to be sued in THIS action is to state theTOS generaly is a contract of adhesion and, SPECIFICALLY the arbitration clause is not binding in this case. Other courts COULD be persuaded that the arbitration clause is non binding in other cases and even that the entire TOS is non binding. That hasn't happened and it may or may not.

The decision is not fatal to LL's case, nor should it be. It will, presumably either settle or be tried on its merits.

If I have time after my RL job, running my son to Little League games & cub scout meetings and shoe shopping with Brenda C., it will be an interesting case to follow.

Brenda? Ever notice that none of the SL shoes hurt your feet? Even stilt like stilletoe pumps are quite comfortable after several hours...unlike the real things.

He he. I agree the bad apples get all the press, same as in mine. It's just some barrwls seem to contain a lot more rotten apples than others If it makes you feel any better I'm just as hard on my colleagues as a I am with Doctors, Insurance Salesmen, Stock Brokers, Pizza Delivery Persons...so it's nothing personal.
Anytime, you are free,I'm ready to shop. Can never have enough shoes. And your right about no pain. Now in RL I sigh as I look at shoes I could never survive but in SL.

MJethinks the decision was Bragg could take the case to trial, not that he could win it.

Hey, it's America! You don't need to win to be able to sue.

Is it sad that I kinda hope he wins, even though I hate the fact that he used an exploit and got banned for it in the first place?

I think you're short selling the case for fraud enormously. Whether it is believable or not, a lie is still a lie, and if Linden Labs believes that saying you can own land in Second Life has no power to induce people to subscribe to Second Life then why perpetuate the concept with such pervasiveness in it's PR campaign and advertising? How sexy and effective would their PR and advertising campaign be and what kind of drawing power would it have if they advertised that you can buy a revocable exclusive license to use land instead of saying you can own land? Bragg's attorney is basically calling out Rosedale as a huckster and lets not forget what one of the greatest hucksters of them all once said: "No one ever lost money by underestimating the intelligence of the American public."

Also keep in mind that Bragg does not necessarily have to prove that he was induced into investing in virtual land because he believed he could actually own the land. He may have a case if he can but prove that he believed he owned a greater right in the land than what he actually ended up with, which was an almost meaningless license to the land which could be revoked at will by Linden Labs at its whim without due process or remuneration, and that is a much easier sell for a judge or jury than your straw man.

Regardless of the actual outcome of this case it may have a significant impact in the way Linden Labs presents Second Life to the public and that in turn could have a significant impact on its marketability and viability as a going concern.

Is that not what is really at issue here? When they ban someone and confiscate their stuff, for "any reason or no reason", are they not violating this basic contractual obligation?

So the previous defense has been the TOS. But, if the TOS violates basic contract law - by not giving consideration to both sides - then they can't do that no more.

Well, obviously they can do anything they want. But it seems to me now that, at least, if the value of what you lose is enough to make it worthwhile, you can sue.

To me, that seems to be the big hang-up with investing money here. Suppose I have an idea for a new realm and I gamble on it with buying a continent of 8 connected islands. My idea works and I lease out 75% percent of the land, with 2 sims for the actual gaming element. So now I have created a nice revenue cow that I can sell for twice my initial investment.

Instead it turns out that somebody is shtupping a 14 year old in game, arranges to meet her, gets caught, makes a scandal and LL decides to shut the whole thing down and I'm out my investment and future profits.

So, it seems that under this decision, in such a case, the hypothetical investor would have some recourse, that was not available before.

Like using Maya to create something. SL is the platform only. OK, thanks Chip, makes sense.

To be fair though, companies have gotten away with this for a long while. Technically speaking when you visit your local computer shop, there's probably a couple of shelves labelled "Software" - not "Software-licenses-that-can-be-revoked-at-any-time".

The only problem is - it would actually be a kinda good thing if this changed..

I Think Mr Bragg has a point. Although he can not access the land or objects he own's (inc L$) due to his ban, this content is surley still owned by him. As this content is made up of lines of code on a server then LL should copy that code to a disk and mail it to him.

A TOS isn't worth the paper it's written on. When the law of the land and a TOS collide, the law of the land will win.

There is a point that keeps getting over looked alot on this subject. Forget the TOS. Linden Labs owns the servers you connect to which means TOS or no TOS if they want to delete your account jsut because they feel like it they can. Its their property. I look at the TOS as more of a guidelines doc or a fallback for Linden Labs. A judge can rule on the TOS all they want and the judge may even be correct but when its all said and done... Second Life is a service provided by Linden Labs and they can close you out for whatever reason and at anytime they want to.

Kind like the store signs... "No shirt, No Shoes, NO service."