The reason I’ve placed a copy of the .pdf on my site is because it contains information useful to MMO researchers concerning the internal workings of gold-farm aggregators. The rather comical allegations made by Alan Debonneville are part of the context. Other MMO researchers who want to see how these companies operate (and, indeed, those who use their services) are being denied access to a public document by the zealousness of lawyers. Academics with a bona fide reason for seeing the material should have bona fide access to it. That’s why I’m making it available.

Should I receive a notice from an officer of the US courts or a law enforcement agent that I am in violation of some court order by hosting the doucment, then naturally I’ll comply with any instruction to remove it. Indeed, if I could find an email address for the clerk of the court in question, I’d get in touch directly and ask outright whether it’s OK for me to host it or not – I don’t hold the laws of the USA in contempt, and would not wish deliberately to defy them.

I’m pretty sure I’m not breaking the laws of England by making the document available, but again, would readily remove it were, say, a police officer to instruct me to do so.

Richard

First, it’s important to realize that I do not represent anyone involved in this, including Professor Bartle. I’m most definitely not qualified to give legal advice regarding how a U.K. court would address this. For that reason, among others (one of which is that I get paid to give advice when I am practicing) I’m very specifically not giving legal advice, but rather offering somewhat off-the-cuff analysis of a situation for a colleague who tracks virtual worlds.

On to Candy’s questions…

As an officer of the court, don’t you have an ethical obligation not only to obey the court’s order but also not to encourage or counsel others to violate the order?

The answer to that specific query is arguably yes — but I haven’t done that and don’t intend to. In spite of the implication in the letter from Mr. Pierce’s lawyers, the only person who could actually “violate the order” in this case is the Clerk of the Court for the Central District of California by distributing the document now, after it has been sealed. The order most definitely does not stand as a directive generally censoring or prohibiting coverage of these issues.

An order sealing a document may (with a lot of stress on “may”) imply an ethical obligation on an attorney not to host a version of that document (which could well have been acquired before it was sealed) on a private blog. Out of an abundance of caution, I have decided not to host it myself, but it seems far too great a stretch to say that this judicial action curtails my First Amendment right to discuss the fact that it was at one point available, and to discuss the possible ramifications of someone else hosting it now.

If the content of that complaint is in fact defamatory, could people face tort liability for spreading it around? (I was wondering about that since the First Amendment does not necessarily protect defamatory speech, and jurisdiction for tort liability could extend across the pond.)

I’m not an expert on defamation, and I’m digging back a few years here, but it strikes me that there are a number of defenses that would apply. The most solid, I think, is that statements made in open court and court documents are exempt from defamation claims, so quoting those documents and statements (particularly in context) would be too. I’m not sure how it plays in to this that the complaint was subsequently sealed, since it was out there and public for months. Anyone considering posting it should probably check with their lawyer.

If someone like myself were to read your interpretation of the relevant law and then acted on it (for example by posting the offending material) BUT, hypothetically of course, it turned out that you were wrong on the law and that I could, in fact, face some sort of legal penalty/liability for my actions — I could not sue you for legal malpractice since you are not my attorney, right? Thus, I would be left to defend myself and pay any adverse judgment out of my own pocket.

That’s probably right. I’m not practicing, and readers of this blog aren’t my clients. Legal advice costs money, this is free. I encourage anyone who is considering posting the complaint to check with his or her attorney and get advice as to whether doing so appears actionable in his or her jurisdiction. I’m most definitely not interpreting law for anyone’s consumption as legal advice here, as noted above. There are simply too many jurisdictional differences and subtleties involved in individual cases for me to do that. Professor Bartle mentioned his university’s legal staff, and I would recommend that he check with them if he has any concerns. He seems a fairly careful gentleman, and I suspect he has (or will) if he feels that is necessary.

Lastly, how come your perceived ethical obligation to remove the link to the complaint does not include removing Professor Bartle’s post, which links to the offending material?

Out of an abundance of caution — because I am an attorney and am making every effort to comply with relevant professional standards — I have chosen not to host the document at Virtually Blind myself, and I have even taken the truly extraordinary step of removing passages in the article above summarizing portions of the complaint, even though it had been publicly available for more than three months before it was sealed.

However, I have a policy of not editing comments on this site absent a request from the original poster. I just let my WordPress filters do their work, and whatever gets posted gets posted.

At some point, it is simply a question of practicality — I cannot do what I cannot do. I am not hosting the document. If I were to remove that comment at this point, though, I am certain that someone else will replace it with another. And another. And another. That, of course, is precisely the problem Mr. Pierce’s attorneys face on a larger scale, and it is a problem I decline to adopt.

Bluntly, I have gone well beyond what I feel I had to do here; I do not feel that my professional obligations extend to constantly policing other people’s comments on this website on behalf of Mr. Pierce’s attorneys. I’ve kept the lines of communication open, and they know that they can bring any fresh concerns to my attention. I will evaluate those concerns on a case by case basis. I have not heard from them regarding Professor Bartle’s comment.

I certainly understand Mr. Pierce’s desire to have this document disappear; it isn’t terribly flattering. But realistically, that just is not going to happen at this point. It is out there. The more his lawyers bash around with letters and vague threats the more attention people will pay to it.

And at bottom, like I said in the original piece, this is a one-sided court filing, and everyone who reads it knows that it’s one guy grinding an ax about another guy. Just like every civil filing, it is full of slanted interpretations and cherry-picked facts, and tells only part of a story. Readers, particularly readers at this site, know that.

In other news, I am making progress getting the amended complaint and answer in this case (this old complaint is the only document that has been sealed, the others are all public) and I look forward to bringing readers expanded coverage of these documents in the near future.

As an officer of the court, don’t you have an ethical obligation not only to obey the court’s order but also not to encourage or counsel others to violate the order?

If the content of that complaint is in fact defamatory, could people face tort liability for spreading it around? (I was wondering about that since the First Amendment does not necessarily protect defamatory speech, and jurisdiction for tort liability could extend across the pond.)

If someone like myself were to read your interpretation of the relevant law and then acted on it (for example by posting the offending material) BUT, hypothetically of course, it turned out that you were wrong on the law and that I could, in fact, face some sort of legal penalty/liability for my actions — I could not sue you for legal malpractice since you are not my attorney, right? Thus, I would be left to defend myself and pay any adverse judgment out of my own pocket.

Lastly, how come your perceived ethical obligation to remove the link to the complaint does not include removing Mr. Bartle’s post, which links to the offending material?

I guess there’s only one way to find out…

Richard

My guess is that they would try to pressure the university to remove it, but again, an order sealing a document merely directs the clerk not to release any more copies of the document. It has absolutely no censoring effect on previously released copies, and absolutely does not stand as an order not to talk about the document that would impact a private citizen in the U.S., let alone a resident of another country. I’m just being particularly careful here because I am an attorney and at least arguably have a professional obligation to respect the spirit of this order (even if I do not think it should have issued) particularly because I cannot determine when the copy of the complaint I had downloaded from MMOCitizen was originally received from the clerk’s office.

Richard

The order that Pierce’s lawyers sent me shows that the complaint was sealed, but that it was only sealed after it had been publicly available for more than three months. In other words, had I received a copy of this complaint last summer and ran this article then, I be pretty comfortable leaving the coverage here as it was. However, I don’t have any way of knowing if the copy I received was released by the Clerk’s office in error after September 17, or released appropriately before that. Because, as a lawyer, I am an officer of the court, I have erred on the side of caution and removed three passages describing the contents of the complaint from this article.

There’s something really important for people to realize here though. An order sealing a document has no real impact on non-attorneys once the document is out there. If I wasn’t a lawyer, and I was hosting this on my website, I would feel comfortable that I was entirely within my rights to leave it up. However, I am a lawyer, and like I said in a comment above, I play by the rules.

In addition, whatever you may think of Brock Pierce and IGE, it is undeniable that some of the allegations contained in the original complaint had precious little to do with the lawsuit (which was at least partly why the judge struck them and sealed the complaint). If the rumors had stayed in the case, I’d have covered them, but I don’t have any desire at all to spread malicious rumors about somebody — particularly when a court has found the rumors irrelevant to the lawsuit I am covering at VB.

I’m now working to get copies of the rest of the documents in this case (none of which have been sealed) and I will run excerpts as soon as I do.

Has the C&D issued to Broken Toys changed anything?

However, in California, judges are developing really weird notions about what’s public and what isn’t. I had a discussion with a real superior court judge who claimed to me that information that “should have been private” (for instance private information accidentally posted on the Internet by a corporation) should be considered private: i.e., even though that info is out in public, possibly for years, anyone who links to, copies (or verbally repeats?) such information has committed some violation of privacy. I have wished ever since that I had the voice and means to vigorously contest the notion that a person can be punished for transmitting public info that “should have been” ( in God knows whose mind) private. It makes me furious that judges with very real power are even thinking in the direction. Can you imagine a jury being given discretion to go that way?