Bragg Vs Linden Lab

http://secondlife.reuters.com/stories/2007/05/31/judge-rules-against-one-sided-tos-in-bragg-lawsuit/

Just wondering what the residents think of thie Bragg case as reported in the link above and copied below.

Is the TOS that LL requires us to accept unfair and should we see a change in the TOS?

Judge rules against ‘one-sided’ TOS in Bragg lawsuit
Thu May 31, 2007 12:05pm PDT
By Eric Reuters

SECOND LIFE, May 31 (Reuters) - A Pennsylvania judge has ruled that Linden Lab’s terms of service for Second Life residents are not legally binding, according to court papers filed on Wednesday.

The ruling came in the case of Bragg v. Linden Research. Marc Bragg, a lawyer from West Chester, Pa., filed suit in 2006 claiming that Linden unfairly terminated his account, causing the loss of his virtual business venture. Linden filed motions to dismiss the suit and compel Bragg to arbitrate his claim out of court, consistent with Linden’s Terms of Service.

Judge Eduardo Robreno ruled on May 30 that Linden’s Terms of Service constitute a “contract of adhesion”, allowing the suit to proceed.

“Linden presents the TOS on a take-it-or-leave-it basis,” he wrote. “In effect, the TOS provide Linden with a variety of one-sided remedies to resolve disputes, while forcing its customers to arbitrate any disputes with Linden.”

“The arbitration clause is not designed to provide Second Life participants an effective means of resolving disputes with Linden. Rather, it is a one-sided means which tilts unfairly, in almost all cases, in Linden’s favor,” Robreno added.

Bragg’s lawsuit named Linden Lab Chief Executive Philip Rosedale as a defendant. Linden’s motion to have Rosedale’s name removed from the suit was also denied by Robreno.

Bragg had identified a means to purchase land in Second Life below market rates. After he purchased thousands of U.S. dollars worth of virtual real estate in this manner, Linden Lab summarily terminated his account, prompting his lawsuit.

If a TOS and the law of the land collide, the law of the land will win.

This is what appeals courts are for.

I think Bragg is an ambulance chaser and a thief. He admitted in a press release that he never even read the TOS before accepting it. He blatantly used a loophole (which he admits) to obtain land for next to nothing and then sold it at market rates for personal profit. Now he has the balls to claim that his ill-gotten gains were taken away from him improperly? The guy has the ethical sense of an excrement pile, and that's exactly what I think of his case. It's a steaming pile.

Well, duh, he's a lawyer!

I mean, seriously, what do you expect?

(With apologies to the 3 lawyers out there who aren't.. )

On another note, an old SLer I knew a year ago who got banned sued as well, and LL settled out of court.

I agree the case is a crock of Sh*t but its the ruling on the TOS that attracted my interest the fact that they have been sofar ruled as unfair, but thats just m,y personal opinion

I don't agree with what Bragg is doing.

However, the general legal principle that companies shouldn't be allowed to create licenses which say "you can never sue us, because in order to do any business with us where we might wrong you, you have to give up all right to sue us by agreeing to the license" is a good one and deserved to be upheld. I know it seems harsh when Linden Lab are doing it, but if it's upheld in court that Linden Labs can get away with it, so can Microsoft.

That ruling alone gives a precedent for anyone else who sues Linden Labs. They can't hide behind the TOS in court anymore.

Just to be precise, this ruling doesn't create a legal precedent. Precedents are established by rulings on appeals to higher level courts, but unless I missed something, this ruling was issued by the court hearing it initially. Other judges are certainly free to refer to it in forming their decisions, but they're not bound by it.

Insert standard IANAL disclaimer here.

your i anal disclaimer is offensive.

Well in light of Yesterday's blog post, I see this as good. It gives the countless people Linden Labs is about to persecute legal options for the necessary lawsuits that will no doubt result. They can't hide behind the TOS anymore.

"Bragg had identified a means to purchase land in Second Life below market rates."

What were these means? And what is his avatar name? Elan??

The case does not set a precedent. My understanding is the case was intitially filed in a Federal Court in PA and then was removed to a local state court for some reason. Had it remained in Federal Court and a decision was published, it could set aprecedent in that Federal District Court. Trial court decisions in state courts are not binding precedents. If it goes to the PA Court of Appeals [it will] THAT decision would be binding in PA or parts of PA. If it goes to the PA Supremes, its binding in PA.

This is a bad case. My view of the thing is that Bragg got taking advantage of the system and got busted for it. I have no sympathy for Bragg whatsoever. A much better case would be one where someone was truly victimized by LL and was suing for redress. That PROBABLY will happen, in my opinion.

Thank you Talarus...I assume I am NOT one of the three?

The Bragg case will be an interesting one to follow but it is FAR from over, folks.

What part of this order is not precedent?

"Finding that the arbitration clause is proceedurally and substantively unconsionable, the Court will refuse to enforce it"

Appeals are only applicable where the judge makes a procedural error, which does not seem to be the case here.

But of course you are one of the three. Before I met you, there were only 2 I knew of.

Does it even matter that it may not be a "precedent"? (I assume this has some legal meaning beyond what we normal folk would mean by it?)

I mean.. really. There was a lawsuit. LL said "nuh uh we have a TOS, you can't sue us", and a judge, who is presumably a legal expert, said "nuh uh that part of the TOS is bogus". To my IANAL mind, the bogusness of a "we get to arbitrate everything" clause doesn't seem very controversial. I bet if it comes up again, another judge would decide the exact same thing anyway.

I think this is a good step towards general ackowledgement that what LL says is not so just because they say it, put it in their mission statement, TOS, CS or whatever. And really, I think it's good for LL in the long run too. It seems to me that if you legally can't unilaterally arbitrate what is allowed and what's not, you bear less responsibility for the badness being there to begin with, and THAT seems like good news for LL.

I read the decision. It does not invalidate the ToS, only the provision that disputes regarding it must be adjudicated in California and that there be binding arbitration.

I don't care to reread the ToS, but the common law practice of "severability" says that if one portion of the contract is invalidated by the courts, this does not invalidate other provisions. The recent Bragg decision only says that the suit can be handled in Pennsylvania and not necessarily by binding arbitration. Bragg is still quite a distance from recovering "damages".

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

I stand corrected. the lawsuit IS in the Federal Courts...Western District of Pennsylvania I believe. I was totally wrong about it being a State Court Case.

Okay, about precedent. For lawyers, this means a written decision in a case which clarifies legal issue. The precedent generally has to be from a higher court within that jurisdiction. For example, theWestern District of PA is part of [I think] the US 3rd Circuit Court of Appeals. The US Supreme Court has jurisdiction over all of the United States. Precedents can be "binding" or "persuasive." This decision, if it is actually published in an official Federal Report [e.g. Fed. Supp.] wouldnt be binding anywhere but W. Dist. pf PA. It would be persuasive in other 3rd Circuit case and less persuasive in other Circuits.

For example, if someone from the Central district of CA wanted to cite the Bragg case in a brief, they could and the court could analyze the reasoning. It would not be binding on a court in Central dist. of CA. unless it was haded down by the9th Cir. or the US Supremes.

I personally found the reasoning expressed by the Federal Judge in the Bragg case to be both convincing and compelling.

Don't get over excited about this yet. I believe this will almost certainly be appealed to the 3rd Cir. and maybe even to the Supremes. A different decision could then happen. who knows?

I predict a couple of things:

1. A LOT more of these type of lawsuits. However, remember the court didn't actually saythe ENTIRE TOS was invalid - just the arbitration agreement.

2. A HASTY rewrite of TOS. I bet they are working on it now as I type this.

3. IF LL starts more banning and confiscation based on the recent BLog which obviously conflicts with their own written TOS & Community Standards, they will leave themselves VERY vulnerable to a rash of similar lawsuits. This would be an extremely unwise decision on their part.

4. this whole thing is going to be among themost entertaining of the plethora o fLL train wrecks we will be treated to inthe near future. I am going to stay onthe sidelines, order up a bunch of popcorn and ENJOY the show!!

Hey Talarus, thanks. We disagree on alot of things but I just can't help liking you.

What about the many people that have had action taken against them before this current blog post? I know several people that have been unfairly and wrongly 'actioned against' with no opportunity to recourse and to be faced with a "tough, now leave us alone" attitude. I'm sure they'd be quite happy to jump on the bandwagon if lawsuits start flying about.

Maybe this will finally be what forces Linden Lab into bringing in some new senior management that can get this straightened out. I just hope that, as he begins to realise that Second Life will never be the digital utopia he dreamed of, that Philip doesn't decide to go home and take his ball with him.

Broccoli

I agree.

First of all, thanks for your clothing templates even though I don't have an artistic bone in my body.

Secondly, yes he is an ambulance chaser but he spotted a loophole, not only inworld, but also outside and unfortunately he's exploited it again.

I agree. While Bragg doesn't have a leg to stand on in his case, he gave rise to others who may have been affected by this clause.

Isn't the big deal here that it will open up the discussion about the value of virtual property and whether SL has to reimburse people for its loss?

Are you familiar with the Land Auction system? Apparently, he discovered that he could guess Auction ID#s for auctions that weren't public yet, and then bid on them and win the auction. (something along those lines, anyway.)

In other words, he found a bug in an SL web site, and took advantage of it.

From what I've read, a LINDEN directed him on how to get to auctions supposedly marked as inactive.