As to your first point, I’m not really sure that the TOS can be redrafted to make it less one-sided without fairly fundamentally changing the relationship between “citizens” and Linden Lab. It’s not the arbitration clause itself that did in the TOS, it’s that the rest of the TOS were so lopsided. Lopsided TOS are the key to establishing the sort of capricious dictatorships gameplayers and virtual world citizens have basically come to expect. My feeling is just about any case against WoW, Ultima, or a number of other game/worlds where people sell content could have done this at any point in the last ten years, but none did because there’s never been enough at stake for litigants to bother or for courts to pay attention. And no game/world ever explicitly said, “Come here and make real money!” either.

So basically, I believe that it’s going to be considered a seminal case because it’s the first time a court has said, “Wait, there’s money on the line? Well then, no — the administrator doesn’t get unlimited power here.”

What will make Bragg important is the stance the court eventually takes on the virtual property ownership issue. And with respect to that issue, I’m not so convinced the court “gets it.”

Specifically, throughout the opinion, the court conflates virtual property rights with copyright rights in virtual property. This is severe enough that the court is sometimes flat-out wrong, such as claiming that Linden grants “property rights in virtual land” when the ToS do exactly the opposite. I write about this confusion quite a bit more on my blog.

I subscribed to your RSS feed around the time of your “trademark infringement in Second Life” post; keep up the interesting writing.

After reading the great points made in your article about the judge’s understanding of the issue, I begin to wonder still more how much this is a situating of himself to make an even strong resolution on virtual property altogether… and perhaps it’s only a matter of time till $L is declared to have value. I guess that’s still a long, tough battle ahead, and I don’t know anything about law anyway, so who knows.

I personally am most concerned about “speech” related issues on the service given the alleged property interests. I don’t even want to think what company employees have been doing to people less knowledgeable, less assertive, and with even less financial capacity to stand up for their consumer rights as Bragg. This is particularly true, recently, with the 100%-brand-new and inconsistent reinterpretation of the Community Standards with attempts to facilitate broader content regulation without publicly appearing to go against previous public assertions (and rather than simply citing unilateral TOS section 4.1 authority and restating company objectives re regulation, in the process). Bragg’s case, to me, is most saliently about equity, and at this point, I too am wondering if all of these sorts of public statements coming out of the Linden PR machine are indeed intentional (as opposed to merely gross mismanagement). I don’t know the truth about circumstances leading to his account termination (guess there will be a chance now), but I do know that it’s been long past time this particular world operator did more to respect its residents and *certainly* also started answering to its public statement inconsistencies vs its actions.

Regardless, Mr. Bragg and his lawyer are, in my mind, true Americans. I hope to have the opportunity to buy some Woebegone fireworks some day.

On the one hand, I think the Court decided correctly. If Linden Lab is going to make the argument that they are a virtual world, and that their “citizens” have rights, and that people “own” their property, then they need to be held to that. I was working for a while on a paper that supported the personal jurisdiction argument, because it’s pretty clear that Rosedale essentially used the media as a soapbox to market the company.

On the other hand, I think it is sad that the Courts are considering these issues so seriously. The Internet is important, yeah, and it, to quote the court, “the most participatory form of mass speech yet developed.”

At the same time, that doesn’t mean most of the speech isn’t stupid shit that needs to be taken so seriously. My worry is that we’ll start to see “real life” law applied to the Internet culture and community as a whole. Time honored phenomena like trolling or griefing–which, while facially antisocial, aren’t really that harmful–will begin to be confused with assault or harassment. We’ve seen this begin already with the sex crimes aspect. It is the height of irresponsible ivory tower intellectualism to argue that humping someone’s avatar bears anything more than the barest passing resemblance to actual rape.

I like my goofy, drama-filled, satirical internet, and my only worry is that extending “real life” rights to amorphous Internet communities will make it a significantly less fun place to be.