If the court says, yes, the ‘ownership’ issue is misleading – whereas Linden Lab has publicly stated that now it is a service… well, that is certainly more representative than ‘own your own land’. ‘Owned by residents’ – really?

If the court sets that precedent, then Linden Lab becomes a service provider and even a publisher (related to ‘broadly offensive’, et al). Personally, I think this would be the intuitive way to proceed – but then, I think Lessig should have won with Eldritch, so who knows.

What Bragg is doing here is actually probably beneficial in the greater community in this aspect. Linden Lab has been pretty fluid with how it defines itself, and hasn’t been very transparent in how they handle violations of Terms of Service and Community Standards. Getting them to define themselves, or, have the Court define them in the context of this case is probably the most important legal issue for Linden Lab. You can’t be everything to everyone.

“Defendants represented that to the extent they exist, records of Plaintiff’s online chats with other Second Life users regarding the alleged auction scheme would be produced in hard copy form.”

And in the plaintiff’s motion, the assertion that “there was a general business practice of preservation of material” is somewhat troubling. Of course such logging on the service side is technically possible, but it’s my expectation as a user that my conversations inworld are ethereal; that LL is not keeping a persistent log of my chat and my IMs.

Of course such logging is available on the client, but it’s not the same thing. I can choose to disable my client’s logs, and I can choose to communicate only with friends I trust not to be logging our conversations (or with whom I’ve comfortable with logging them). And at least I can restrict what information I tell other residents, regardless of whether I trust them or not.

But communication logging on the service side is entirely different. It would be entirely unavoidable since inworld communication relies on the service and cannot function without it.

I know that LL’s TOS prohibit posting of other peoples’ chat logs, but I’m not sure what their stated policy is (if indeed there is one) regarding communication data retention. To be fair, I checked the privacy policies for MSN Messenger (http://privacy.microsoft.com/en-us/messenger.aspx) and for Google Talk (http://www.google.com/talk/privacy.html) and neither of them mentions a policy regarding service-side logging, either.

I’m curious to find out more as discovery proceeds about what kind of data LL retains and for how long. Is it likely that such chat logs would fall under a confidentiality agreement, or would they be part of the public record? And even if they are deemed confidential, what kind of information could we expect to learn about LL’s methodology of data retention?

Here, Linden Lab is going to have to give up documents that are protected by confidentiality agreements it has with third parties (probably including Second Life users other than Bragg, though I’d need to go back and read the Second Life TOS and privacy policy to make sure that’s true, but certainly including other companies like payment processing companies, etc.)

It will need to stamp those docs “Highly Confidential – Attorney Eyes Only” or something along those lines so that they can’t be attached to filings that aren’t sealed. The court will typically have a clear procedure for filing documents that contain confidential information, and the parties are, in my experience, typically expected to execute some kind of agreement to make this happen in accordance with the Court’s rules.