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'Benamin Noble' - Benjamin Duranske's Second Life AvatarRecently, VB began a new feature: closely examining filings in cases related to virtual law. Unlike most posts here, these posts contain only a tiny bit of opinion and not much personality at all. As I pointed out when I first ran one of these, there’s an important reason for that. Since these posts are a departure from my usual style, I am going to repeat that reason now in a standalone post so I can permanently link to it in the sidebar.

Regarding commentary on filings: I am an attorney, and I need to be able to take positions in the future that are in my clients’ best interests on both sides of narrow issues like those that are likely to come up in filings. If I plastered this blog with my personal opinions about specific discovery disputes, the timing of specific motions, and judges’ likely reaction to various tactics, I would probably end up seeing those words in a filing against my future clients at some point. That’s not fair to them, nor is it very good for business.

My compromise is this: I will call readers’ attention to things that most litigators would notice as anomalous and I will highlight excerpts from the filings that will be interesting to readers, but I’m not going to make broad predictions or generally critique active filings. There’s just too much potential that doing so could hurt a future client. On the other hand, before suits have been filed or charges have been brought, I have a lot more leeway to write in my typical “voice” because the topics are more general. More on the gray areas below.

Where there’s a gray area in the law (e.g. the validity of recent patent applications on virtual world technology, “ownership” of virtual land, and the value of virtual world currency) I generally try to point that out or approach the issue in a way that makes it clear it is up in the air. Those posts, of course, take a somewhat more neutral tone, and when I miss a counterargument, readers tend to catch it in the comments. On the other hand, there are some issues that VB confronts (e.g the illegality of ponzi schemes, the legality of virtual escort work, and the necessity of Linden Lab complying with the UIGEA) where, from a legal perspective, the outcome is rather black and white.

There are many, many more unresolved questions in virtual law than resolved questions, including most of the big ones. Unresolved questions include whether currency in virtual worlds should be equated with real world currency, whether virtual land can be meaningfully equated with real property, and whether virtual world users should have broader rights beyond those agreed to in the end user license agreement and terms of service. I’m very much looking forward to seeing some of the arguments that are made on these issues, and how courts decide them.

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5 Responses to “From the Editor: Commentary on Active Lawsuits and Unsettled Issues in Virtual Law”

  1. [...] Discovery proceeds in the Bragg v. Linden Lab case. Bragg recently served two sets of document requests on Linden Lab, and has made them available. As is my policy on live lawsuits, I’ll run the excerpts without significant commentary. I expect, however, that these excerpts will raise some interesting questions for readers. [...]

  2. on 23 Aug 2007 at 1:36 pmAshcroft Burnham

    Hmm, that’s a very interesting approach to professional ethics. I’m assuming that that’s fairly standard in the US, although that approach would be considered very unusual here, where barristers regularly write articles in academic or semi-academic journals or express their opinions on abstract questions of law. There is even a special provision in the Code of Conduct for the Bar of England and Wales permitting barristers to express their opinions on cases in which they have been involved (which is otherwise prohibited) in academic contexts.

    In the UK, at least, the firm rule is that the barrister’s personal opinion of the case is irrelevant, and he or she is never allowed to refer to her or his opinion of the matter when addressing the court: he or she must instead make “submissions” on behalf of the client. From my understanding, litigation in the US is far less impersonal as far as the lawyers conducting the litigation are concerned. I rather prefer our culture, I think: it prevents problems such as you describe from arising.

  3. on 23 Aug 2007 at 1:46 pmBenjamin Duranske

    No similar rule keeps attorney commentary out over here — I wish we had one! It would not be considered evidence at trial, of course, but there’s nothing preventing somebody from putting it in a letter or a brief or bringing it up during a “meet and confer” call except class, and well… we are talking about American lawyers here.

    For me, it is just a practical question. If I wanted to, I could say whatever I felt like about live filings. But if I get too detailed (e.g. I say something like, “It’s very odd that he did this, because you shouldn’t do that at this point in a case”) it would make it much harder to take the opposite position later. It’d definitely be quoted in letters and phone calls, and probably in filings too.

    Since sometimes the facts put you in a position where you have to make apparently lousy arguments in litigation, I don’t want to jeopardize future clients’ cases just to make a point about tactics in a live lawsuit. So I’m circumspect on these. Also, the excerpts are sometimes pretty telling on their own anyway.

  4. on 24 Aug 2007 at 1:36 pmAshcroft Burnham

    What’s a “meet and confer” call? Is that anything like what we call a “case management conference” over here (a relatively informal hearing before a junior level judge at which the progression of the case is discussed, and things like the timetables for submitting evidence, etc., are set)?

  5. on 24 Aug 2007 at 2:02 pmBenjamin Duranske

    @4 – Ashcroft, U.S. court local rules often require that attorneys “meet and confer” before bringing certain motions (usually discovery motions like motions to compel) to the court. The moving party sometimes has to certify that he or she attempted to “meet and confer” when filing these motions. A M&C call is typically between attorneys, with no judge on the line. Then afterward, one or both sides write letters to each other summarizing the call, and then, often, get in further arguments about the contents of these letters. It’s ridiculously inefficient, but it at least keeps the lawyers out of the judge’s hair for a while, and it not infrequently results in a compromise that doesn’t involve the court.

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