Virtually Blind recently conducted an in-depth telephone interview with Jason Archinaco, Marc Bragg’s attorney in the case against Linden Lab and Philip Rosedale. Archinaco is a partner at White and Williams, in Pittsburgh.

We discussed topics as diverse — and divisive — as Linden Lab’s accusation that Bragg violated a California criminal statute, the potential for punitive damages, Bragg as a possible witness, balancing the rights of virtual world users against the rights of developers, and the nature of virtual property.

Virtually Blind: When did you get involved in this case?

Jason Archinaco: Sometime around May of 2006. Mr. Bragg had originally filed the case in Pennsylvania state court at the magistrate level. He withdrew that complaint and we filed in state court in Pennsylvania in the Court of Common Pleas. Linden Lab argued that there was more than $75,000 in controversy in the case, and removed the case to Federal Court in the Eastern District of Pennsylvania, and that’s where the case is now.

I’ve played a lot of different online games. Ultima Online, EverQuest, World of Warcraft, Anarchy Online. My addiction began with an Atari 2600 and stand up quarter machines.

VB: Do you have other clients with virtual world or game connections?

JA: Yes, but I can’t identify any of them publicly at this point.

VB: Do you participate in virtual worlds or games yourself?

JA: I’ve played a lot of different online multiplayer games. Ultima Online, EverQuest, World of Warcraft, Anarchy Online. I’ve done some beta testing too, right now I’m in the beta for Richard Garriott’s Tabula Rasa. My addiction began with an Atari 2600 and stand up quarter machines.

VB: Do you participate in any non-game virtual worlds, like There or Second Life?

JA: I logged in to test drive Second Life when I started representing Mr. Bragg. So I have an avatar in Second Life, but I think he’s stuck over an ocean somewhere.

VB: Beyond Marc Bragg’s individual issues, do you view this case as saying something important about virtual law?

JA: Yes. There are a lot of different things that this case will address. The biggest one is the intersection between ownership of and access to virtual items. These are different things, and the question is how the Court will reconcile those concepts.

If someone sells virtual land or items, that should result in a consumer having the right to access things that they bought.

Also, we want to determine what law will be applied. I’ve urged a similar law to that of “landlocked property.” Basically, if I sell a property that is entirely surrounded by someone else’s property, an easement by necessity is going to be created so that the buyer can access the land. Same thing here, if someone sells virtual land or items, that should result in a user or consumer having the right to access things that they bought.

Another line of thought is that buying virtual land or items is like buying a membership in a club. Sure, someone could terminate that membership, but if they do, there’s a California law that says the member should be entitled to due process in advance of being terminated from the club. Any contract provision that states otherwise is invalid.

What’s happening now is that Linden is contesting the idea that they sold land, even though they told everyone that they were selling it before.

So the first issue is ownership, the second is access, and the third is if access is cut off, what is the recourse for consumer?

VB: Do you think the case will go to trial in December when it is scheduled to?

JA: I am very hopeful to see it go to trial in December. It really depends on discovery though. What documents we are provided, how hard we have to push, and the level of cooperation from Linden Lab, and others.

VB: So you have discovery requests out to other parties?

JA: Yes. We’ve subpoenaed information from outside investors in Linden Lab. So far, we’ve largely had non-compliance from them.

VB: Who did you subpoena?

JA: Omidyar Network, Benchmark Capital, Catamount Ventures, and Globespan Capital Partners.

VB: Are you aware that Bragg is publishing discovery requests on his website, and are you in favor of that?

JA: Everything is up. The filings and the discovery requests too. The reason why we’re doing that is because the requests for copies of documents that we get from people who are interested in this case borders on the insane at times, so we just decided to make everything available rather than doing it piecemeal. It’s the most open approach.

VB: What’s your 30 second summary of the case right now?

They say it’s an analogy, or it’s a metaphor, or it’s not really what we meant — the land isn’t really for sale. Well, maybe Linden should have communicated that fact to the fifty-thousand or so people who now think they’ve purchased land.

JA: Paragraph 48 of the Complaint and the response to it. That’s the cornerstone. Paragraph 48 is Rosedale and Linden Lab telling people we’re selling the land, transferring title, you can own virtual land and so on. And then go look at their response, which is basically an admission that they’re not telling the truth. They say it’s an analogy, or it’s a metaphor, or it’s not really what we meant — the land isn’t really for sale. Well, maybe Linden should have communicated that fact to the fifty-thousand or so people who now think they’ve purchased land.

[Editor’s note: the Complaint is here, the most recent Amended Response is here. Both are .pdf files.]

VB: Have you reached an agreement with Linden Lab on the confidentiality of documents provided in response to requests for production?

JA: No.

VB: Have any documents been produced yet?

JA: After we asked for them specifically, Linden Lab has produced copies of the chat logs they referenced in their Amended Counterclaims, but that’s it.

VB: Has either side taken any depositions yet?

JA: No. We’ve noticed depositions for Philip Rosedale, Corey Ondrejka (‘Cory Linden’), and a “Person Most Knowledgeable” deposition for September, but nothing has happened yet.

VB: Will documents that are produced here be made available on Bragg’s web site?

JA: The chat logs will be, because we’re attaching them to our motion to dismiss the counterclaims.

We’ve already produced thousands of pages of documents to Linden Lab, and we expect them to produce a lot of documents to us too, though we don’t have much yet. We’re probably not going to put all of those documents up on the site, because of the bandwidth if nothing else, but where either side relies on the documents in briefs, we’ll attach those and publish them to the extent we’re allowed to.

VB: There’s some question about the size of the claim you’ve got here. What damages are you seeking now?

Through the discovery process it’s looking like Bragg actually paid Linden Lab around $14,000. There’s a potential for treble damages here too because we have unfair trade practices claims as well as punitive damages and attorneys’ fees.

But there are larger repercussions to this case than just Bragg. Linden Lab has sold nearly 10,000 islands. Those have sold for approximately $1700 each. That’s a staggering amount of money – around U.S. $17 million just on island sales, and that’s not including the $295 month maintenance fees, and everything else, all through the same representation where they say you can buy and own land.

VB: This question ties in to that. Some VB readers have questioned Bragg’s recent document requests, particularly request #110 in the second set, which seeks records of all land sales by Linden Lab. Can you comment on the motivation for these requests?

JA: As I said, there are unfair trade practice claims. Relevant to that inquiry is how many times the company has done what they did here before – selling land under this idea that it’s not really a sale. The information is also particularly relevant in terms of punitive damages. A jury can award an amount in order to punish or deter a company, and you’d have to know how much money they made doing it to find an amount that is a reasonable deterrence. We are seeking punitive damages here.

VB: In the Amended Counterclaims of August 17, Linden Lab accuses Bragg of violating a California Penal Code Section 502. Specifically, 502(c)(1)(A). I’ll parse it to the part they’re focusing on: Bragg would be in violation if he “knowingly accessed” and “without permission … used any computer network in order to devise or execute a scheme or artifice to defraud.” Some commentators are pretty convinced that’s exactly what he did. What’s your response?

JA: Well, I can’t respond directly to nameless commentators, but I’ll say this: the counterclaim that Bragg violated a criminal code is absolutely outrageous, and it’s also defamatory. Not only are we moving to dismiss the counterclaim but, it could really give rise to a defamation claim too. The only reason to bring the claim is so Linden Lab can allege Bragg violated a law on their web site.

VB: What do you mean?

JA: What he did isn’t in violation of that law. It’s just “backward browsing.” You type in a URL instead of clicking on a link. The media does it all the time. There’s even a situation in California where it came up, and we put this in a brief. A political opponent of Governor Arnold Schwarzenegger downloaded an audio file of some really inflammatory statements made by Schwarzenegger and published them. The person found them by typing web addresses in his web browser until he located them. Schwarzenegger tried to have the person prosecuted. The California Attorney General and the California Highway Patrol conducted an investigation and concluded that there was no crime to charge there because more than one person could access the webpage that way, and there was no security device preventing “backwards browsing”.

It is outrageous for them to put a page on the internet and then accuse someone of committing a computer crime for accessing it.

Look, anybody could access the pages the way Bragg did. He just typed an address in a browser. People do that whenever they take the last part of a web address off and hit enter to pull up a different page. Linden Lab made the web pages and put them on the internet. Linden Lab published the parcel numbers that anyone could type in. And they did nothing to prevent this. They had no security, no passwords, nothing. It is outrageous for them to put a page on the internet and then accuse someone of committing a computer crime for accessing it using information they gave him. They use fancy words like “synthesize a URL” to try to dress it up, but they’re accusing him of typing an address in a web browser. That’s it. Typing an address in a web browser is not a crime.

For those out there, whoever they are, who are saying that typing an address in a web browser is a crime, they should be careful about those kind of statements because it is not only defamatory, but also a slippery slope.

VB: Are you worried that even if you’re right, this creates a bad story about Bragg that undermines the story you want to tell?

JA: So far, Linden Lab has referred very selectively to chat logs. They didn’t attach those logs to their Counterclaims but I just obtained them and we’ll attach them to our motion to dismiss the Counterclaims. The reason they didn’t attach the chat logs is clear now. Those logs make it clear that the number that Bragg was typing in the URL could be obtained from the parcel itself that Linden Lab made public. He just used information they gave him.

Anyway, we’ll attach the whole transcripts and let people read it and decide for themselves.

Think about this: Linden Lab set the auctions to start at $1. They could have set them to start at $1000 if they wanted to. Then they email people throughout the auction while they’re bidding at $1, $100, and so on and confirm the bids, and then they email the winner at the end to congratulate him when he wins. One of the people Bragg was talking to about the auctions told Bragg that he thought Linden Lab ran the auctions this way on purpose.

All this fanboy stuff about the land auctions and all that, where people are attacking Bragg. It doesn’t even matter legally.

I don’t know, but there have been two incidents. The first was an insider deal on the teen grid. And the second was last month how they tipped off big owners before they raised land prices. I’m going to get to the bottom of it. If they want to go down this path we’re going to find out exactly why the auctions were set to start at one dollar. Why not just start at $1000? It makes no sense.

VB: If this goes to trial, do you anticipate Bragg being called as a witness?

JA: Absolutely. He’ll testify about what happened and about being duped by Rosedale’s statements and Linden Lab’s advertising.

All this fanboy stuff about the land auctions and all that, where people are attacking Bragg, I’ve tried not to get into it. Here’s why. It doesn’t even matter legally.

Let’s say you just assume Bragg’s a bad guy. I don’t think he is, of course, but let’s just assume he is. Who cares? If somebody steals from Wal-mart, can Wal-mart’s security guys come to his house and repossess everything else he bought from them over the years? Of course not. If you have an investment account with Vanguard and there’s a mismarked stock – which happens – where you know it’s worth $50 but it’s listed at $1 and you buy all you can, they’re not going to honor the buys, but they aren’t going to say, “Yeah, we’ll keep that, and we’ll take this other $100,000 you’ve deposited with us too. See you, thanks!” For Linden Lab to point to the Terms of Service and say “Look, we have a forfeiture clause,” well, that clause is outright unlawful.

VB: You’ve had some success chipping away at Linden Lab’s Terms of Service already. Can you talk about that?

JA: What happened was it became obvious they buried the effect of the arbitration clause intentionally, and we pointed that out. The Court ruled, correctly, I think, that it was unconscionable to do that. What they were trying to do was make it impossible for users to sue them.

VB: Is there anything else you’d like to tell people about this case?

I think people basically get it. It’s an important case, and I’m glad to be handling it. Hopefully, it will establish some important precedents.

This is a divisive issue for people. A lot of it comes down to player rights. People are scared to step on the toes of the developer. There has to be a balance between player and developer rights. You take any fear of reprisal away, and most players would say I have some rights in my character, these things are mine, and this is my account. The question becomes, what is the intersection of those rights. When people are paying, they have a right to some of what they do there creatively, and a right to what they’re told they have bought and own.