Bragg Case

This is not entirely true. While most of the auctions use USD as the purchase currency, many also use L$. The only payment that is always in USD is tier, which is not a purchase fee, but an ongoing monthly maintenance fee.

Forgive me if I am wrong, but when you click the 'I have read and agree to the TOS' don't you then enter into an agreement? You always have the Decline button.

Here's where they define "The Service", and it can be more than reasonably argued that "land" falls within this definition:



Here's what governs your right/license to use "The Service", and again, this includes "land":


Since I can't do simple things like embolden text, I'll quote the important bit:

"Linden Lab grants to you a non-exclusive, limited, fully revocable license to use the Linden Software and the rest of the Service during the time you are in full compliance with the Terms of Service."

The important phrase here is "during the time that you are in full compliance with the Terms of Service". Bragg's behavior in manipulating the land auction system to gain personal advantage over other Residents violates section 4.1 of the same Terms of Service he concedes to have agreed to. He was therefore not in full compliance with the Terms of Service at the time Linden Lab disabled access to his account. Section 2.6 adequately represents Linden Lab's position with regard to refunds of positive account balances. It would certainly be unconscionable to cancel "for no reason" and refuse to refund any positive balance that may exist, but in this particular case, there was perfectly good and valid reason to suspend, and then cancel Bragg's account.

It should also be noted that the situation might well have been settled more amicably had Bragg not threatened to bring suit against Linden Lab, expecting them to cave in and agree to his ridiculous demands, and then file suit when they didn't.

You are forgiven.

The argument made (and accepted by the judge) is that, with the lack of a viable competing product, if you choose not to agree to the ToS you are effectively barred from partcipating in the fun of virtual real estate. If you've already got assets in SL, it's too bad -- you lose them if you choose not to agree to whatever arbitrary clause LL has decided to inject *this* time. The take-it-or-piss-off nature of the ToS therefore makes it an unconscionable contract of adhesion -- i.e. you really *can't* say no to it.

I wonder how many people have ever bothered to even give it a cursory glance, much less actually read it. I think Bragg himself admitted to having "agreed", without ever even reading it. And he's a lawyer.

Apparently not on everything included in the TOS, the court has already denied parts of the LL TOS.

The arguments made, and accepted by the judge, focused specifically on the arbitration clause, and don't necessarily challenge the entire agreement. I'm sure the relevant paragraphs will be analysed and argued to death as the case proceeds, but I'd be willing to bet that the agreement on the whole will emerge relatively un-scathed.

Part of Bragg's lawsuit is alleging false advertising, which would indeed target the marketing element. How obvious the information is, is a factor - and if I understand correctly how this works (and IANAL), in court it doesn't matter if the particular person on the stand would find it obvious (especially since they cannot be trusted, since they will try their best to win the lawsuit) - it has to be judged based on whether _an average reasonable person_ would find it obvious. I don't know about the USA, but in the UK, people _have_ won false advertising lawsuits against companies even though the information they complained about not having was there in the small print. (Specifically mobile phone ringtone/video companies which activate a subscription when you send them a text message.)

also makes worth nothing that the TOS was changed AFTER the Bragg case was started.

I dont know what it said before .... BUT I STILL say that they should have just refunded the money he bought the sims for and left it at that.

It WASNT a hack..... in fact it was less of a hack than landbots, copybots, campbots,

and as for linden purchases for land....... from what i have seen its only for parcels, sims are paid in COLD HARD CASH!!!!

*s*, itsw double standards though, becasue the likes of Bragg are stealing money from the community, Ive never heard of him before this but lets be honest...

How can he steal something to which LL says doesnt really exist in the first place

You can quote any amount of the TOS you like. That doesn't change the fact that, where there is a contradiction between the laws of the land and a TOS document, the laws of the land take absolute precedence. Since it has already been esbalished that the TOS constitutes a contract of adhesion, that makes the validity of the rest of that document into an open question. As such it's not a document that I would take too seriously in determing who is right in this court case.

plus I agree with Yumi...

you can be sued in the UK under the sales of goods and services act for false advertising REGARDLESS of what your TOS says after the fact (note LL in brighton therefor DOES apply).

Mobile phone providers are probably among the most notorious when it comes to burying information in small print which is critical to making an informed decision.

I kinda wonder though, in the case of Second Life, which is universally understood to be a _software simulation_, how it is that an attorney (among all possible plaintiffs) could claim to not understand the technical and legal underpinnings of the service, and how the buying and selling of virtual land is conducted and governed within the simulated environment, through a relatively simple license agreement. Don't think it's all that simple? Print out the typical EULA from a Microsoft software product, and compare it alongside the Second Life ToS. I'm not a lawyer either, yet I don't have any difficulty at all understanding the nature of "land" in Second Life, that it is a simulated element of the service, and that its use is licensed to me as a software product, subject to certain terms and conditions.

At the very outset of the Terms of Service, it is stated that Second Life is a service, and that every piece of hardware and software operated by Linden Lab to provide the service, are encompassed within the definition of "the Service". The fact that our use of the service is governed by a limited, revocable license is also in no way obscured, or otherwise made difficult to understand. It's right there in black and white, regardless of the particular metaphore Linden Lab chooses to use in their marketing campaigns.

I consider myself an "average, reasonable person". Mr. Bragg is ostensibly an above average, well educated, licensed attorney.

I don't entirely agree. In most contracts, there is a thing called "severability", where if a particular term within the contract is successfully challenged in a legal setting, that particular term of the contract is voided, leaving the remainder of the contract intact. Thus far, we have seen a successful challenge of the arbitration clause.

Also, there is nothing inherently unlawful about an adhesion contract. They're about as common as apple pie, and until they are successfully challenged in court, the terms within are legally enforceable. Bragg has the burden of challenging the terms which are inconvenient to his case. Until he does so, and the court agrees, he is obligated to adhere them.

I wonder what the Bragg case is actually the best example of?


*CYA Terms of Service with unlawful unaccountable clauses.

*A computer savy person taking advantage of poor designed website's structure to buy something to know they dam well shouldnt have at a discounted rate they knew they were not entitled to.

-OR-

*The fact that the American Legal System is in such a desperate need of serious Reforms that a lawyer can bring nearly ANY case to trial on the flimsiest of reasons.


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Before people are really impressed with this litigation, please remember there are many cases of burgulars who have been able to sue their victims in court - and WIN.

Ding Ding Ding. I think we have a winner.

OR unless a Judge declares the Terms of Service to be unconsionable and an illegal contract of adhesion, as he has in this case!

What makes that "reasonable to conclude"??? Because a virtual character posting in forums says so?? Excuse me while I snicker at the ridiculousness of that. As has been pointed out here numerous times, "land" is NOT paid for in $L, its paid for in $USD, and therefore logically has about NOTHING to do with the limited, revocable license for Linden currency, which was not at all involved in the transaction. Also, it appears a Judge is determining that its not obviously "reasonable to conclude" without a full court case. Sorry, Zaphod, I guess that Judge forgot to ask you first.




Yep, most definitely "marketing vs. fine print" and courts have come down MANY times in the past on the side of consumers when the marketing message blared loudly over and over again contradicted the terms buried pages deep in fine print. Rosedale can't have it both ways, and I expect THAT will be one of the key things to come from this case.

Again, this is NOT what happened. The judge determined the arbitration clause in the General Provisions section of the document to be unconscionable. The rest of the ToS is intact, and enforceable, until such time as a court rules otherwise.

Contracts of adhesion are not inherently illegal or evil. If they were, none of us would be able to use the operating systems we're using to get online and post to this forum. Our use is governed by .. guess what.. a legally binding, enforceable, take-it-or-leave-it contract of adhesion.

You're mixing things up, telling half truths, and jumping to a point in the future that the Judge hasn't even arrived at. The only conclusion the Judge has come to was that the arbitration requirement was unconscionable, and that the case should proceed to trial, not 3rd party arbitration.

As has been corrected numerous times, land is indeed OFTEN paid for in Linden dollars, the use of which is governed by a limited, revocable license. This is really neither here nor there, but its important to keep facts in-check.

Land, being a simulated component of the Service, is also governed by a limited, revocable license, granted to you while you remain in compliance with the Terms of Service.

These are not obscure, difficult to understand concepts, if you actually take the time to read the document.

Pfftt.

At least within my jurisdiction, a contract of adhesion is *inherently* unlawful. The fact that a given contract is unlawful has, sadly, just like anything else, hasn't prevented it from actually happening.

Most of the "half truths" or more to the point "personal opinions presented as facts or truths" in this thread have come from YOU, my friend.


Land is also OFTEN paid for in USD, and that is ALWAYS the case for private islands. And again, this IS a relevant issue here, whether YOU think it is or not.


You mean like the concept that contracts of adhesion are prima facie illegal, said concept which you don't seem to understand?

First, my apologies - everything I state, I state as opinion, not fact, and I speak on no-one's behalf but my own. I am also endeavoring to keep my tone civil, and I would encourage others to do the same.

But I have to ask, how do you come to the conclusion that adhesion contracts are illegal? Aren't most software license agreements adhesion contracts? I'll concede that courts haven't acted very friendly toward them, and often some of the terms are so ridiculously unfair as to be unconscionable, and invalid, but I don't think it is correct to say they are prima facie illegal, at least in the United States, where this case is being heard.

I'm not an attorney, nor do I play one on TV. Out of curiosity, I looked up what Wikipedia had to say about Contracts of Adhesion. (Aka: Standard Form Contract).

http://en.wikipedia.org/wiki/Contract_of_adhesion

Granted, its Wikipedia. But from what I'm reading in the link above, contracts of adhesion are *not* prima facie illegal. Rather, instead of them being illegal, the courts are afforded great latitude in interpreting them, and tend to do so contra proferentum (i.e. - against the contract writer), when portions appear ambiguous or unfair to the court.

Having the binding arbitration clause thrown out, yet leaving the rest of the TOS intact seems to fit in with Wikipedia's description of the application of contra proferentum in Contracts of Adhesion, unless I'm misunderstanding how this all works

Well Travis, I'm not a lawyer either, but lets take a closer look at that Wiki article. First, the part about "contra proferentem" is in the common law section, before they even get to U.S. specific. Now, in the U.S. section, it says "The special scrutiny given to contracts of adhesion can be performed in a number of ways:" and then goes on to detail three ways. The first is:

* If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable. The reasonable expectation is assessed objectively, looking at the prominence of the term, the purpose of the term and the circumstances surrounding acceptance of the contract.

* The second is specific and limited, and it says "This is a subjective test focusing on the mind of the seller and has been adopted by only a few state courts."

* Finally, the third refers specific to "unconscionability" and says "The doctrine of unconscionability which is a fact-specific doctrine arising from equitable principles. Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them."

So, since we must remember that a Judge HAS already entered a finding of "unconscionability" lets follow the link there to read more about "unconscionability" where we find that "Upon finding unconscionability a court has a great deal of flexibility on how it remedies the situation. It may refuse to enforce the contract, refuse to enforce the offending clause, or take other measures it deems necessary to have a fair outcome. Damages are usually not awarded."

Sounds like that at a *minimum* the offending clause is thrown out, but refusing to enforce the ENTIRE contract is also a common and accepted remedy.

So maybe the legal term "prima facie" is too strong, but the above certainly flies in the face of our friend Zaphod Kotobide who would have us believe that there's nothing wrong at all with contracts of adhesion. It sounds like they're more often than not invalidated, in part or in whole, *IF* they're challenged. And there's the rub, they're often not challenged, for the same reason that they're entered into in the first place - the balance of power is hugely unequal. Illegal contracts are left to stand quite often, simply because no one has been willing to expend the time and the money necessary to fight them. That doesn't make them legal, it just makes them unchallenged. Without discussing whether "Bragg" is right or wrong in the specific case, I applaud the finding of "unconscionability" here, and hope its the crack in the bigger dam of Linden's TOS, which I personally believe has MANY more "unconscionable" clauses than the binding arbitration one which has been the focus SO FAR in the *preliminary* findings of this court.

Dallas, it is pretty simple. If you don't like the contract, don't use the service. No one is forcing you to be in SL. It is an entertainment venue. You have no right to be here. Mr. Bragg has no right to be here. We are all in SL at the pleasure of Linden Labs.