Bragg Case

Yes, you're EXACTLY right Yumi, they would SUE you for fraud - in a court of law. What Sotheby's would NOT be allowed to do would be to investigate, prosecute, judge and deliver a verdict, and then execute the collection of that verdict. We don't give private entities the power to be police, judge and jury - that's most definitely NOT the way things work.

Umm, yes, it charges for monthly for those server resources, BUT - and I see this as a HUGE but - it ALSO charges a hefty fee up front for you to "BUY" (their terminology) those resources (land.)


Exhibit all the cynical skepticism you want, Jake - what I noted above is the FUNDAMENTAL difference, in my opinion - and its a FUNDAMENTAL difference that THEY created themselves. The $1675 USD each that private island owners have paid UP FRONT to BUY (again, THEIR terminology, not mine) the islands - or in the case of mainland sim auctions, maybe DOUBLE that - makes their lindens balance in their avatar's accounts at any given time pretty insignificant. Its THOSE investments that LL has encouraged people to make (BUY) that *does* make this FUNDAMENTALLY different from your everyday computer simulation. Find me one of those, Jake, where the service provider has marketed those kind of investments and collected those magnitudes of $$ up front to BUY land or other resources - as opposed to the monthly usage charges.

As long as those TOS don't violate my basic customer rights, like the right to keep and use something that I bought. Not rented, bought, just as the land store claims.

Ooh, FRAUD! I LIKE it! If the value does exceed US$1,000 (as someone asserted above), that would trigger the fraud statutes just about everywhere in the US, I think - where I am, it is a mere US$250. If he did two or more such valuable "auctions," that is two or more felony counts, and I know for a fact that would trigger the federal RICO act - Racketeer Influenced and Corrupt Organizations - which was aimed at the Mafia but would include any forms of fraud by anyone requiring communications that cross state lines. The penalties start with confiscation of assets related to the crime(s), and can include up to 10 years in federal prison PER COUNT. (No, my RL name does not end in an -o; I once had business reasons to research this point.)

Oh, and if it were me finding out someone was running a clever con or "gaming" me to take some of my stuff on my property, I would take back everything that even looked like it was mine, and even be rather rude about it, and dare the crook to try to come and get it. Looks like that is what LL has done.

It still remains to be seen why LL chose to make a costly legal fight of this. My money is still on the question of whether it is still "real" money when it has been changed into L$.

/me phones in standing order for regular delivery of buttered popcorn; sits back to enjoy the show.

Har, just to be clear, I don't defend Bragg at all here. I agree with Amity - both Bragg and Linden are "bad actors" here, both trying to take unfair advantage of the other. Yes, it might well be that Linden could go after Bragg for fraud - although, I'm betting if their lawyers thought they had a chance, THAT countersuit would have already been filed, and I don't think it has.

I don't really care whether Bragg goes down here - in fact, he probably deserves to. But at the same time, I don't think the TOS should stand, and I don't think LL should be able to appoint themselves police, judge, jury and executioner and deprive the other party of normal due process, which is certainly what they claim they can do - here AND more significantly where they're "fining" the innocents who have unknowingly purchased fraudulent Lindens, while not going after the fraudsters themselves. If Linden is *truly* interested in stopping the fraud, then its very simple to me, and I'd think there's a good shot a Judge might agree. They should:

* Go after those who have perpetuated the frauds, instead of just the innocent buyers.

* Give the defrauded buyers all the information they have, to enable THEM to pursue action against the fraudulent sellers to get their monies back.

* Put a clear and concise notice on the blog and maybe as in-world announcements that buying Linden on eBay is officially taboo.

Until and unless they do that AND quit collecting "fines" in addition to confiscating the fraudulent Linden themselves, they're running a *profit center* from this fraud, vs. trying to make any attempts to stop it - and I think that makes them a party to the fraud themselves - IMHO, of course.

Well, I presume it does, since he bought for US$1 a sim that would otherwise have sold at auction for US$1000+.

That's a big issue, in bragg and in general. Someone said that they've changed the terms of service since all the bragg stuff went down. If that's the case I'd like to see a snapshot of what it said then. What it seems to strongly suggest now is essentially that the only thing you actually "own" in Second Life are intellectual property rights to things you create. Linden owns everything else, and you are simply granted a limited, revocable license to use the service. "Own" seems to be a bit of a metaphor. Effectively, you own something (land) until you break the rules, at which time Linden seem to have the discretion to sortof "foreclose" on your assets and give you a one way ticket to there.com. It will be interesting to see if this approach survives bragg. I suspect it will, albeit with a few scrapes and bruises.

Those of you who think LL has a clear case aganst Bragg for hacking/defrauding them... why do you think LL didn't take Bragg to court? LL would presumably have had all the server logs 9not to mention bragg's own testimony) to make it an open and shut case, the way some of you describe it.

Oh, I understand the difference is there in a certain way - it's just that that difference is one of marketing doublespeak. Sure, there may be a larger dollar value than buying a bonus in some fantasy game, but it's the marketing hype that creates a difference in perception. Not the fundamentals of exchanging money for simulated goods.

When it comes down to it, you're paying a server set up fee and a monthly access lease. If I don't have the right to access every bit of data on the sim's server and even take the server back home if I so choose, than I haven't really bought anything material, I've only bought a service contract. And of course, both because of the way sims can shift around to different physical servers and the closed proprietary nature of the server side software, I don't have that kind of real ownership. LL isn't going to let me take 'my' sim and host it from some non-LL site.

Absolutely LL is using extremely strong marketing language, and quite probably they should be told in a stern legal way to stop misrepresenting themselves.

Nowhere in the land store or in the description of tier fees is the word "own" used. The tier is described alternately as a "land use fee" and as a "lease." In the description of island pricing the initial purchase price is described as a set up fee. The only place I see that the word "own" is used is on the front page of the site where there's a button that says "own virtual land" which takes you to the information where the other terminology is used. I think any claim of deceptive advertising would be a very hard sell. The fees are described as exactly what they are if someone bothers to read the information before putting in their money.

They didn't take him to court because there was no need to. They took all his inworld assetts, whether rightly or wrongly. What they gain by initiating a law suit?

I agree with some of the previous posters. the ideal solution is for Bragg to lose the lawsuit but have TOS totally shredded.

At the time when I bough my island (before the new TOS came out), the words "buy" and "own" were all over the land store.

Let's see how it looks today... when I click on "Land auctions" on the SL profile page, I find a link on the right side saying "BUY your OWN island today". I follow the link and the next page shows the headline "Imagine your OWN island getaway in Second Life!" The text below speaks of "your island" and tells me that "Islands are priced at US$1,675". The price of an island, that suggests a purchase price and not a setup fee. When I follow the link to the land store and view the FAQs, I read the word "buy" and "own" all over too. "You can reserve or BUY islands for use in Second Life with this store", "you PURCHASE the region for a flat price", "a user OWNING exactly one region is a concierge user" etc.

All that strongly suggests that the customer buys virtual real estate. I just printed these pages to have some proof in case LL ever changes the wording.

Own, used in that context, does not mean the same thing.

"Your island" is not indicative of ownership... My contract with my webhost speaks of "your website", I own only the graphics and code, not the server that hosts it.

A price without further embelishment does not lend itself one way or the other to ownership or lease/setup.

The new TOS does only speak of ownership as in "LL owns everything". It basically says that whatever you pay for, it will never be yours. That's quite a contradiction to the SL client interface claiming to sell you virtual currency, as well as to their homepage and land store claiming to sell land and transfer the ownership of the sold land.

A MMORPG publisher can get away with such a TOS, since it's obvious that you only pay for the server usage. But as soon as a service sells virtual property... SOE had planned it too (sale of armor parts, weapons and virtual currency), but gave up the idea. Possibly because of the legal complications of selling something while keeping ownership of the sold ware. I couldn't think of another reason for SOE to discard a good business idea.

Own means own. Your website is yours; it consists of code and images, as you said. You completely own it, you only pay for the hosting service. If they cancel the contract, you can take your website and have it hosted by someone else. Or use it on your local PC. It's your property, and you keep it. Your webhost will be required to delete your data; they can't sell your website (code + images) to the next customer.

The code and images don't even have to be designed by you. If you have an advertising agency design your website, you pay for digital data which becomes your property. The hosting is a separate service that can be cancelled by both sides, but you will keep ownership of the bought data. The same happens when I buy an island; I pay LL to deliver digital data, i.e. an island in a certain shape. They can't simply take back and resell this data because they don't want to host it anymore.

That's true in SL as well, but your virtual land IS the server space. It's not seperable from it. If a web host terminates your contract they will turn around and resell that server space to someone else. Content that you create in SL and graphics that you upload remain your IP and LL can't and won't turn around and sell that.



That would depend entirely on the contract you have with the agency that designed your website. In many cases they will retain ownership of the designs and they've sold you only a right to use those designs in a limited capacity. They are then free to sell those same elements to other clients.

No, it doesn't. I can have "my own office" at work, but I don't own the office. As I said, in that specific context the word "own" doesn't mean "have legal possession of", it means "exclusively yours".

Here is a link to the page that says buying a region grants you "complete ownership".

Not just regular ownership, complete ownership. You have to click on the hyperlink that says "pricing"

http://secondlife.com/apps/mapapps/buy/

Each Region is US $1675

A region will give you complete ownership of each grid space you purchase.

Each Reservation starts at US $30

A reservation will allow you to save a space to build on.

Currently only concierge users can use this feature of the Land Store.

And for the other side of the coin, LL is not disputing Bragg's "ownership" of his virtual assets, according to the Linden Blog:
~snip~
What about Bragg’s claim that Linden “stole” his money and his virtual property?

In fact, the money that was in his account at the time it was suspended is still there. Linden was obliged to mitigate any losses resulting from Bragg’s suspension, so instead of leaving Bragg’s “virtual land” in his account and causing him to incur monthly land use fees (or “tier charges”), Linden recovered it and auctioned it off to other users, in accordance with the Terms of Service. Now that it has been determined that the case will be decided in federal court rather than in arbitration, Linden has asked the court to hold the funds that were in Bragg’s account at the time it was suspended and the proceeds from the sale of the “virtual land” in that account, pending resolution of the dispute.

Why didn’t Linden return Bragg’s money and the proceeds from the sale of his property when he was suspended?

Bragg filed suit the very day after his account was suspended due to the irregular auction activity in his account. At that point the parties were in a legal dispute. The court will decide what happens to the money and the proceeds.

Because this dispute is still in progress, we will be offering no further comments at this time.

Thank you Snowflake, for pointing that out. I made a half assed attempt at doing so a while back, but it has escaped almost everyone. Linden has taken nothing away from him. They've frozen it. They're prepared to give back to him what the court ultimately decides is due him.

EDIT: Which really kinda puts a damper on much of the conversation in this thread, now that I think about it.

I've said elsewhere that I think use of the ownership terminology is probably not a good idea, but it also correctly refers to the fees as land use fees and set up fees. That, combined with the fact that Second Life land can only exist in SL, makes it very difficult for me to believe that any reasonable person who bothers to read before spending could think the situation was anything other than what it actually is.

I mentioned this in the blog but I'll repeat it here. This case, with the semantic argument that Bragg is making, reminds me very much of the recent "pants" case, in which a DC area judge sued his local drycleaners because he claimed the pants they returned to him weren't the same ones he brought in. They offered to pay him enough money to replace the pants but he refused and instead sued them for $54 million. The basis of his claim was that they had a sign posted that said "satisfaction guaranteed," and he took that to mean that he could badger them into paying him a much larger sum of money. He lost, and the judge in the case said the plaintiff's argument was baseless, and that simply because their sign said "satisfaction guaranteed" that didn't impart any rights to their customers beyond what a reasonable person would expect.

I don't see how a reasonable person could expect to actually own land in SL, no matter what the marketing rhetoric says. Since the land can't exist outside of SL, and LL has to retain the right to kick people out of the service who break the terms of service, there's simply no way anyone can actually own anything here beyond the right to use those assets while they're a member of SL in good standing and continue to pay their fees. I find the argument that ownership implies more than that (when it can't possibly be more than that in SL) to be illogical and unreasonable.

Even LL is not disputing the "ownership" by the fact that they have auctioned off the virtual land and have given the money to the courts. While people may not "own" the land in a tangible way, they do apparently "own" some VALUE of it. In Bragg's case, the value of his legitimately obtained land is being held by the court, according to the blog.

I agree that SL Land is not a tangible good, but apparently it does have monetary value that LL is required to recompense if LL removes the use of it from someone.

Well, yes you did say that "elsewhere" - earlier in this thread. As a matter of fact, you said:

But unfortunately, you're WRONG about that, Chip! Its already been pointed out to you - did you just miss that, or conveniently choose to ignore it?? Far from your assertion that "Nowhere in the land store or in the description of tier fees is the word "own" used" its actually used all OVER the place, and you've been led clearly to the places where it is. Just in case you actually *missed* that, let me repeat it for you:


So Chip, it DOES say "own" and "buy" and "purchase" all over, contrary to your assertions. As Snowflake pointed out to you, it goes so far as to say "A region will give you complete ownership of each grid space you purchase." COMPLETE OWNERSHIP, Chip - that's not "marketing rhetoric", its a description of what you're BUYING - it doesn't say use fees, it doesn't say setup fees, it says COMPLETE OWNERSHIP, Chip.


Gee, Chip, its really pretty simple. That's *not* just "marketing rhetoric" its a promise held out to the buyer, its what's termed "inducement to purchase." You might want to look that term up, you may find it enlightening. When the buyer says "this is what you're buying" a reasonable person may assume that that *IS* what they're buying. And as for their unlimited right to kick people out of SecondLife based on the TOS, please remember that the TOS is one of the things being debated in the court case at hand. So it actually remains to be seen just how much of that TOS is left standing, and how much latitude they have to kick people out for any reason they choose, or no reason at all - as the TOS says.

To me this is the most important aspect of the case. From what I understand now, Bragg merely took advantage of a bug in SL's auction system. Personally, I think LL should just suck it up. It might not have been the most honest dealing ever, but neither are landbots. If you allow one, you should have to allow the other, and vice versa. However, that is only what is fair, not what actually is. LL is a company, not a government. They don't have to be fair.

They do have to obey laws though and a business has certain obligations to it's customers, regardless of their TOS. SL's TOS is constructed in such a way that no RL company could get away with half the things they get away with. Why does this paradigm shift because the company in question sells virtual land rather than real land? A free market is only so free and open to judicial as well as legislative control. The current political climate in the US aside, there are rules and regs that business have to at least pretend to obey, and LL's TOS violates many. This, 'We can do the heck whatever we want!' thing doesn't practically hold water. LL doesn't define its rules. They use vague terminology that no RL company could survive without being buried in lawsuits and audits. At the very least they need to clean up their act and like in RL business, lawsuits like this are the first step.

This is not a condemnation of SL. I love SL and I am greatful to LL, but that does not make them Ceasar, at least not OUTSIDE the SL metaverse.

Take a chill pill there, Dallas. I'm simply stating my opinion, which is that Bragg's argument about "ownership" in SL doesn't hold up to rational scrutiny based on the nature of the medium. Frankly I can't imagine any semi-intelligent person believing that they're getting anything other than a lease on server space with a hefty setup or auction fee, regardless of any marketing hype. The land pricing and information section spells out quite clearly that tier is a land useage fee and the island pricing information clearly describes the initial cost as a setup fee. It's not really LL's fault if people don't read the fine print (which in this case isn't even fine print) or the terms of service (which Bragg admits he didn't do) before investing their money. I guess that "inducement to buy" is just too all-powerful for some people.