Bragg v. Linden Lab Update – New Motion to Dismiss Counterclaims Filed; Complete Chat Logs Available
August 28th, 2007 by Benjamin Duranske
Plaintiff Marc Bragg has filed a new Rule 12(b)(6) motion to dismiss (.pdf) regarding Linden Lab’s counterclaims against him, and a supporting brief (.pdf). Some readers will recall that Bragg already filed a 12(b)(6) motion but after he did, Linden Lab amended its complaint. The amendment added quotations from chat logs that shed light on Linden Lab’s claim that the method Bragg used to buy land violated a California criminal law prohibiting unauthorized computer access for fraudulent purposes. Bragg’s new motion amplifies points made earlier, and addresses this material.
A few things are worth noting. First, Bragg has made the full chat logs available as exhibits to the motion (.zip, look for Exhibit 12). There are some redactions to the logs, but the redactions at least appear to excise only material unrelated to this suit. Second, the argument has shifted a bit based on these logs: Bragg now states that the chat logs reveal that Linden Lab provided the parcel numbers Bragg typed in URLs, and so Bragg now argues more directly that he accessed nothing that wasn’t made public by Linden Lab. Finally, the tone of the brief in support of this motion is, if anything, even stronger than the previous one — the “cornered rat” is still there, and he has been joined by an allegation that Linden Lab and its lawyers acted in bad faith by bringing the counterclaim related to the California criminal statute.
As always, I must make two important points on these documents. First, remember that the excerpts below come from a brief in support of a motion filed by Bragg, and as such they show Bragg in the best possible light and show Linden Lab and Philip Rosedale in the worst. Defendants will answer these points when they file their response to this motion, and I’ll be repeating this warning then with the names reversed. Second, as is my policy on live filings, the excerpts below are presented without commentary.
I’m only going to highlight new material in this motion (there’s plenty of that, including a big section of the chat logs). For extensive coverage of excerpts from the original (many of which are unchanged) see VB’s earlier coverage of Bragg’s original Motion to Dismiss.
Here are the excerpts:
Defendant Linden is simply unreasonably delaying this Court’s ruling on Plaintiff s Rule 12 (b)(6) Motion to Dismiss in an effort to keep portions of its frivolous and baseless Counterclaims posted on its website. Further, Defendant’s Amended Answer and Counterclaims remain insufficient, lack merit, and were filed for the improper purpose of increasing the burden and expense of Plaintiffs litigation.
A reasonably careful attorney would have known after appropriate inquiry that the claims Defendant is pursuing are not plausible legally or factually. Because Defendant is pursuing claims that are without plausible legal or factual basis and lacking in justification further illustrates Defendant’s bad faith and unreasonableness.
Defendant is delaying this Honorable Court’s ruling on Plaintiffs Motion to Dismiss in a bogus attempt to carry some leverage into a mediation in this case which is scheduled for August 30, 2007
Defendant has not initiated suit against the alleged “cohorts” of Plaintiff. Defendant has not joined them in this action which further shows Defendant’s bad faith in bringing these baseless and frivolous claims against Plaintiff.
The chat logs upon which Defendant Linden claims to rely set forth that Defendant Linden provided the land auction I.D.’s for the low priced land.
Plaintiff directly pointed out Defendant Linden’s attempt to avoid Rule l2(b)(6) scrutiny be relying extensively upon, yet refusing to attach, the “chat logs.” Despite being apprized of that argument, Defendant Linden has persisted in its improper refusal to attach the chat logs. Defendant Linden has refused to do so because it knows that the chat logs not only do not support its claims, but the contents of those logs demonstrate that Defendant Linden’s computer fraud claims are knowingly false. For example, the chat logs, when read with other document Defendant Linden relies upon but refuses to attach, and with Defendant Linden’s admissions reveal:
1. Plaintiff saw low price land auctions that had concluded.
2. On April 29, 2006, at 8:40 a.m., Plaintiff sent Defendant Linden an e-mail inquiring how he too could obtain low priced land. Exhibit “7.”
3. Defendant Linden replied by automated response but did not respond further. Exhibit “8.”
4. Plaintiff went “in world” and, at approximately 11 :37 a.m., inquired of user “M.S.” how M.S. had obtained low price land. Amended Counterclaim, ~ 34; Exhibit “11,” Bate Stamp No. LRI00302. Contrary to the partial chat log citation, here is what was actually said:
LRI00302: Plaintiff-II :37:08: “101.. wish had? how did you manage to get those? i didn’t even see them come up for auction?”
LRI00289: M.S.-1l:37:40: “just went to the purple sim on my map and looked on the site” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI00302: Plaintiff-I 1:37:59: “right.. and then u bid on them at the auction?”
LRI00290: M.S.-II :38:09: “mabey [sic] because I was actually standing on the sim?”
LRI00290: M.S.-ll:38:13: “yep”
LRI00302: Plaintiff-II :38:26: “oh you did.. standing on the sim doesn’t matter.. 101. hmmmm”
LRI00302: Plaintiff-II :38:30: “were there other bidders?”
LRI00290: M.S.-II :38:37: “no”
LRI00302: Plaintiff-II :38:46: “cool! you did well then.. that’s good… ”
LRI00303: Plaintiff-II :39:02: “so you go thtem for 1,000 each no othe rbidders.. interesting… and veryunusual…”
LRI00303: Plaintiff-I 1:39:34: “they were I,OOOUS each, weren’t they?”
LRI00290: M.S.-II :39:36: “If I get any of the others I bid on, you want to buy?… I’m tiered to the hilt and would rather make money than pay penalties”
LRI00303: Plaintiff-II :39:52: “ifthey’re wwater I’d be very interested, sure…”
LRI00290: M.S.-II :40:11: “lernme see what I can do … they come up this afternoon”
5. Shortly thereafter, M.S. explained that the auction LD. number for land was placed on the land itself by Defendant Linden. The following exchange occurred at approximately 12:18 p.m., portions of which have also been intentionally omitted by Defendant Linden from the Counterclaim:
LRI00290: M.S.-12:18:09: ”http://secondlife.com/auctions/detail.phh?id=0026198448″
LRI00304: Plaintiff-12:18:39: “you see MUL on the active bid page?”
LRI00304: Plaintiff-12:18:48: ”http://secondlife.com/auctions/detail.phh?id=0026198448″
LRI00290: M.S.-12:18:51: “about land” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00290: M.S.-12:19:00: “tells you the auction number”(INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00290: M.S.-12:19:20: “type it in over any active auction number on the page” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00304: Plaintiff-12:19:23: “ifi do about land.. right i get the auction number.. but this sim is notavailable… ”
LRI 00290: M.S.-12: 19:44: “yes.. .it is … the auction is being bid right now”
LRI 00290: M.S.-12:19:52: “copy this urI”
LRI 00304: Plaintiff-12:19:52: “wait a minute… this is crazy… ”
LRI 00291: M.S.-12:19:54 ”http://second1ife.com/auctions/detai1.php?id=0026198448″
LRI 00304: P1aintiff-12:19:58: “what did you pay for the other sims?”
LRI 00304: P1aintiff-12:20: 16: “:are u tellin me that if a sim is not on the active auction page, you can make it active for $1.00?”
LRI 00291: M.S-12:20:23: “nope”
LRI 00304: P1aintiff-12:20:24: “you paid only 1.00? seriously?”
6. Further, prior to Plaintiff bidding on any low priced land, the following chat log exchange occurred, again, intentionally omitted from the Counterclaim by Defendant Linden:
LRI 00317: M.S.-12:37:00: “make enough to pay your tier cause Gov Linden will stop you from playin the game at all” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00317: D.S.-12:37:19: “ifyou don’t pay tier right?”
LRI 00317: M.S.-12:37:32: “or if you blab” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00317: Plaintiff-12:37:38: “ah.. sure… ”
LRI 00317: D.S.-12:37:45: “ohyeahok”
LRI 00317: M.S.-12:37:47: “they can change the website too, ya know”
LRI 00317: Plaintiff-12:38:01: “yea.. .i would think they will eventually..”
LRI 00317: M.S.-12:38:02: “it’s an exploit as how they will see it”
LRI 00317: Plaintiff-12:38:03: “amazing… ”
LRI 00317: M.S.-12:38:28: “and they will cancel the account for doin it, just because they are loosing $”
LRI 00317: D.S.-12:38:49: “so why are they letting it happen?” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00317: M.S.-12:39:13: “(not against the rules… but they don’t REALLY need a reason to close your account)” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00317: P1aintiff-12:39:14: “can you do this only with purple land, or can you do it with any land that has an auction id?”
LRI 00317: P1aintiff-12:39:20: “true… ”
LRI 00317: M.S.-12:39:29: “only with purple land”
LRI 00317: Plaintiff-12:39:35: “amazin….”
LRI 00317: M.S.-12:39:41: “not really”
LRI 00317: M.S.-12:40:01: “they give you all the info” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00317: Plaintiff-12:40:07: “i think I have only two”
LRI 00317: M.S.-12:40:16: “all you have to do, is go there” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00317: Plaintiff-12:40:25: “oh, right.. ok… ”
LRI 00317: M.S.-12:40:47: “not a cheat” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
7. Furthermore, in yet another section of the chat logs that were in possession of Defendant Linden prior to it filing its Counterclaim, the following discussion occurred (prior to Plaintiff winning the Taessot sim), again intentionally omitted by Defendant Linden:
LRI 00294: M..S.-08:58:01: “oh… and found out why Lindens are letting it go like this” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN) LRI 00294: M.S.-08:58:17: “if it is unadvertised, no one bids” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00294: M.S.-08:58:49: “If it goes without bids for long enough, they can release it into general population as 1st land” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00294: M.S.-09:00:06: “so i think they know all about it.. they just don’t say anything about it because that’s how they ‘Donate’ land” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00294: M.S.-09:00:50: “and if they say’ naah mez.. you’ve had enough’ they send Microdick Dinkens in whit a lOOO$US bid and list it” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
LRI 00295: M.S.-09:01:33: “a linden labs account” (INTENTIONALLY OMITTED BY DEFENDANT LINDEN)
Reviewing the above, Defendant Linden’s reason for the refusal to attach the chat logs is obvious.
As pointed out to this Court, the chat logs that Defendant Linden refused to attach to its Counterclaim also specifically disclose that the auction LD. numbers were created by Defendant Linden and appeared on the land itself. Exhibit “11,” Bate Stamp Nos. LRI 00290, LRI 00291, LRI 00296, LRI 00297, LRI 00304, LRI 00311, and LRI 00312
In an attempt to responding to the fact that Defendant Linden not only placed the prices on the low priced land, but also placed the auction pages on the internet, Defendant Linden has decided to plead, inconsistent with its other admissions and also reality, that the auction pages were “not pages posted on the Internet by Linden.” See, Amended Counterclaim, ~ 41. Such a conclusory allegation is not only nonsense, but is contradicted by the facts, other admissions of Defendant Linden and reality. First, the allegation is inconsistent with charging Plaintiff over $300 for the land he was not provided. Second, the allegation is inconsistent with the Amended Answer, paragraphs 91-93 and 96-7. Third, simply typing a web address in a web browser does not “create” a webpage.
In addition to new allegations where Defendant Linden has admitted to permitting at least seven (7) low priced land auctions and the re-sale of that land, the chat logs also establish that, contrary to Defendant Linden’s false suggestions, it appears quite clear that Defendant Linden was permitting the low priced land auctions and was not stopping them, not only from being concluded, but also from selling that land to third parties. See, Exhibit “11.” Quite frankly, when the admissions in the Amended Counterclaim and the chat logs as a whole are read, there is no other interpretation other than Defendant Linden intentionally created the low priced land auctions. Even if, however, the items were simply “mismarked” by Defendant Linden, no computer crime was committed by Plaintiff.
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