Bragg Case

The court can't force LL to let Bragg back into SL, but they can require LL to pay compensation. If LL have taken money from him in exhange for things they agreed to provide, things aren't cut-and-dried.

If a shop owner does not want you in their shop, they have the right to throw you out. But they do not have the right to wait until you buy something, take your money, and *then* throw you out without your product. Once they start the transaction, they have to keep to their side of the deal, and that suspends even the right to throw you out they'd normally have. They can cancel the transaction of course, but then they have to cancel their side too, ie, give you back your money.

A store can decline their service and keep you from entering, that's true. What they can't do is let you in, allow you to buy something, then take the ware back, throw you out and keep your money. That's theft.

I bought an island at LL's land store once. At that time, the TOS didn't include a hint that all content on LL's servers would be LL's property. Every text in the land store suggested that I would aquire ownership of virtual property (not the sim server, but the virtual representation of land stored on the server). I didn't sign a sales contract with certain contract terms; I only handed money over, received virtual land and agreed to pay maintenance fees for my property.

The case is pretty clear: I bought something and now I own something. Otherwise the sale was a fraud. LL can't take back what they sold without a refund, as long as I keep paying my maintenance fee.

What exactly did Bragg do? (Not that I'm looking for scamming tips) I know he used some sort of 3rd party software to buy land. Allegedly, LL thinks the method he used violated TOS. But how exactly did the software work. Again, I'm not asking for code, but what the 3rd party software accomplished that got LL's panties twisted.

he didn't use any third party software at all. He noted that the URLs for the not-yet-publicly-announced auctions could be found easily from publicly available information(1), and used that information to place bids for them. LL then accepted his bid, charged his card, then banned his account from the game, resulting in the present lawyer-fest.

(1) The root of the URL is common to all auctions. The latter variable part could be found (at that time) by going in-world to the sim which was up for auction. I understand this security hole has since been fixed.

http://www.ivanhoffman.com/onlinecontracts.html
interesting read on ToS vs contracts link
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http://www.secondlifeinsider.com/2007/06/02/bragg-vs-linden-lab-robreno-says-no-twice/

"Along the way Robreno declares the Second Life Terms of Service invalid, and indirectly, it would appear, the Terms of Service of most or all other Virtual Worlds and MMO's by precedent.Robreno's decision to consider the Second Life Terms of Service as an unenforceable contract of adhesion seems to largely invalidate similar Terms of Service/End User License Agreements, like those of Blizzard, NCsoft, Microsoft and others. Most of these use essentially the same boilerplate terms with individualistic flourishes."
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my understanding of this, and no im not an armchair lawyer, is that bragg saw and exploit, used it, and now is being spanked for LLs gaff. yes i know he should have reported it, but im now wondering how many others knew about it and didnt say anything either? if bragg had of done what he did rl, would this even be up for discussion? of course not. it would be in the same vein as insider trading.
Edit: let me rephrase my question: i mean can LL cry foul and have it both ways when there are those being exploited by the land bots issue?

No, he didn't. He simply went to the auction page, and typed in auction numbers that were upcoming, but not yet publicly released, and bid on them. The process of bidding on them started the auction, but since they hadn't been publicly released, they obviously didn't get too many bids and he won the auction for a very low price.

Actually, exactly none of it is owned by him. In the content sense, he only owns the ideas, the particular arrangement of polygons which make up his content. The ones and zeros which allow those ideas to be virtually realized are, and always will be, owned by Linden Lab.

And he doesn't, and never did "own" the L$. He was granted a limited, revokable right to use the $L.

you state this as fact, yet the judge has thus far indicated he believes otherwise.

I suspect a court could be easily convinced that a limited revokable licence, with zero comepnsation when revoked, is unconscionable.

Disclamer: I am not a lawyer, nor do I play one on TV.

To clear up some misconceptions of the judge's ruling:

The judge did not rule that the entire SL TOS is illegal. The judge did not make any rulings about virtual land, L$ value, LL's ability to ban residents or any other aspect of the TOS aside from the paragraphs about arbitration or dispute resolution between residents and LL.

To sum it up, the judge said that a contract can not trump a person's right to a hearing and trial by judge and jury. That's it... that's where we are today.

As it is written, the TOS states that a person waives these rights (agreeing instead to arbitration within the state of California), when using SL. However, with the judge's ruling, a full trial can continue into all the other aspects of the TOS people have speculated about above.

On top of that, I believe LL has appealed the judge's ruling. So, until the appeal is heard, the rest of the debate will have to wait.

Yeah, well, until Bragg and possibly other similar cases are fully resolved, it pretty much is fact. I'm also speaking more of content, whereas the focus of this case I think is more on issues surrounding "ownership" of land.

The idea that Linden -owns the data-, if it is challenged in this case, is probably solid enough to remain relatively intact. It is very common in many online spaces and even offline, that content you submit to those spaces become the property of the operators of the spaces, save for material you have a prior copyright or trademark claim to.

What we "own" in Second life is a license to use the various aspects of the service (such as land), as well as certain intellectual property rights to content we create within the service. Linden Lab owns the data which represents our creations - that stuff sitting in database rows on the asset servers.

Linden owns the simulators, which is fundamentally where "land" exists. It isn't technically possible for us to "own" land in Second Life. Ownership of land is simply a marketing strategy. The "fine print", also known as the Terms of Service, clarify that what we actually are paying for is a limited, revocable license to use the land provisioned to our account, and other aspects of the service, while we remain in compliance with the Terms of Service. Linden won't have much difficulty defending this.

Where they are going to have a problem is with the Linden currency issue. Linden Lab, to some extent, profits directly from the sale of Linden dollars on the Lindex by Supply Linden. A substantial amount of the US and Linden dollar supply, however, is accumulated directly through Resident-Resident trading. Each transaction involves a transfer of license to hold and use the Linden dollars. There is probably no way to know how many of Bragg's million or so Linden dollars are comprised of currency contributed to the Lindex from other residents, vs from Linden Lab itself. Linden will argue that regardless of the source of the Linden dollars, Linden at all times controls the license to use them, and therefore can revoke that license at any time, for any reason or no reason. As muddy as these waters are, I don't think they are going to emerge from this one without a scratch or two.

And as long as you otherwise remain in compliance with the Terms of Service, which you have agreed to numerous times.

Well, Bragg has specifically argued against that. His arguments were as follows:
a) the definition of "owning land" on Second Life is so different from the normal meaning of "own" that using the word "own" in that context is enough to be false advertising/fraud;

b) the contract of sale for the land is a whole new contract, separate from the contract for accessing Second Life. Since the auction service does not actually ask you to agree to the TOS again when you place a bid, the TOS isn't part of that new contract.

When you read and agree to the Terms of Service, you agree to an understanding that you don't really "own" the land, but instead are granted a limited, revocable license to use it, while remaining in compliance with the Terms of Service contract, which you agreed to, many times. It is your obligation to read and comprehend it. It is not Linden's obligation to translate it for you into First Grade level English.



Bullshit. The contract for accessing Second Life supercedes any implied or assumed (or in bragg's case, imagined) contract at the point of sale of land. You can't engage in a land deal without first agreeing to the Terms of Service, which govern your license to access the service, and anything and everything you do within the service. Bragg agreed to the "limited, revocable licence to use the service, so long as he remains in compliance with the Terms of Service" deal at the very outset.

By the time you go about "purchasing" land, you're aware, implicitly, of the licence agreement described in the ToS, and you have agreed to it. If that's the best bragg's got, he's really gonna need donations to his legal fund.

zaphod, you obviously are not following the case.
the tos can say whatever it wants, but that does not make it law. the judge has thoroughly dismantled key aspects of the tos already and the case hasnt even been fully heard yet.
who should i find more credible, a trial judge or you?

Actually, the words "land" and "own" do not appear in the TOS. _L$_ are described as a limited license - but land isn't mentioned at all.



But land is apparantly sold as a product, not a service. (That said, I have no idea if or how Bragg's claim would have worked if LL had locked him out of SL, but still left the land in the name of his avatar. )

Way I see it, while the tos may (very arguably) protect LL from loses resulting from L$ transactions, or even LL's failure to correctly account for your L$ balance at all, it doesn't appear to say anything about paying for a service in US$ and then being denied that service with no refund.

Well, I guess there is a line that says they can cancel with no refund for any or no reason, but that's plain unconscionable.

It is reasonable to conclude, upon consumption of the Terms of Service, that "land" is a part of "The Service", and is therefore provisioned within the constraints of the same limited, revocable license for use as Linden currency, or any other offering within the service.



Again, marketing vs fine print. "Land" in Second Life can't possibly or technically be sold to or owned by any party external to Linden Lab. It is not a "product", but a "service", the definition of which is encompassed fairly enough in the ToS.

That said, the financial integrity of Bragg's in-world assets is intact. At the conclusion of this case, Linden Lab are prepared to deliver to Bragg whatever the court ultimately decides is due him.

What is obvious is that I'm not following the same case that you are. Please, and without further effort to insult me, cite order(s) by the judge in this case which "thoroughly dismantle key aspects of the Terms of Service" beyond denying Rosedale's motion to dismiss for lack of jurisdiction(which has nothing at all to do with the ToS), and denying Linden's motion to compel arbitration.

The integrity of a Terms of Service document as a whole is not compromised by a court finding specific portions of it invalid. Again, I kindly ask that you cite your sources, and resist the temptation to post inflammatory and/or insulting graphics along with your response.

just out of curiosity,

When you WIN an action, you DO own the land.... you then pay LL maintainence to host that land......

so...

Which part of this is wrong, ive seen auctions go for 3k but LL are saying that its non existant. This is the things that I dont understand. If it isnt yours even after you win the auction the 3k is bloody lot of money to rent, but then the tier fees isnt that also an additional rental.

what LL SHOULD have done is fill the whole once it had been discovered and said to Bragg that the land won at auction had not yet gone public therefor the sale was void and as such refunded him the RL money. Instead LL did the totally unethical approach of banning the user, removing his investments and selling his "owned" land.

Regardless of wether his assets are virtual, they are taxable once realised back to RL money therefor they ARE real. In linden talk ....
Shares arnt real as they have no value in them selves.....
Money isnt real as it only is a promiss to pay the bearer....

Bragg did cheat yes..... but its a cheat that LL accepted payment for, $2 isnt going to break the bank to refund but they have proberly removed thousands of dollars of in world investment and resold it on.

LL REALLLLLLLLLY needs to decide wether this is "Rent U life" or really an opportunity to "OWN" the things that you have paid REAL LIFE money on.

Marty

Perhaps we're reaching the point where that is for the law to decide, not LL.

I think your right there Suzi,

Maybe this will create a precident over wether the term " Virtual Property " can be assigned ownership seeing the large sums of money that are being dealt with.

LL have advertised that you OWN your virtual stuff, therefor they cannot take it away allthough they CAN take away your access to it. I think LL has created thier own problems here. They created a "you can do and be anything" but now say you cant .... "you can OWN land" but ooops nope you cant..... you own the IP rights.... errr no not that either as the Lindens can loose it and use the term virtual meaning non existant.

I feel that it may be possible that the courts may depict that as LL is charging for a service then it falls under goods and services law rather than "linden - we do what ever we like law". Remeber even microsoft fell under for commercial arrogance.

Note that LL .... ONLY accept RL money for land.... and NOT Lindens, therefor making it a RL purchase rather than a virtual purchase

So true; this never came to mind.

Nina, why this awe of trial judges? Most judges in America are little more than failed lawyers and career politicians.

As for Bragg, did he receive any use of the property before it was taken from him? If so, LL held up their end of the bargain.