A month ago I blogged about what is shaping up to be an interesting virtual world law case between an ex-Second Life user (Bragg) and Linden Labs (SL’s developer). I summarize the case at the very bottom of the post if you’re not familiar with it. That post talked about Judge Robreno’s ruling that he was declaring part of Linden’s ToS invalid, among other things. Linden has now filed its response to Bragg’s claims, as well as its counterclaims (they are suing Bragg now). You can find the court filing here.

There are some interesting statements made by Linden in its answer to and counterclaims against Marc Bragg (who is an attorney himself). Here are some selected quotes.

Second Life Not The Same Animal?
First, Linden wants to establish Second Life as something other than an MMORPG, saying:

“Defendants deny that Second Life is accurately characterized as a massively-multiplayer-online-role-playing game (“MMORPG”), although Second Life does share certain characteristics with such games (in that both are online environments rendered in three dimensions in which users are represented by avatars) and is sometimes compared with them in the media.”

and

“Defendants admit that Second Life has been referred to as a game, but aver that it is more accurately characterized as a three dimensional development platform or a computing platform.”

and

“Defendants specifically deny that Second Life is part of the MMORPG
“industry.””

and with classic Linden attitude:

“Defendants deny that “Second Life generally languished and trailed its peers in terms of participants,” as Second Life was unique, and not an MMORPG, and had no peers, and further deny that Second Life can be meaningfully compared to an MMORPG.”

I don’t see how they can deny they’re an MMORPG. They’re massively multiplayer, and they’re certainly a roleplaying game. All the furries, goreans, ageplayers, B&Ders, etc are roleplaying. Heck, there’s more roleplaying in Second Life than there is on your average WoW server. Linden’s even got a way to keep score: Linden dollars.

It’s also odd that Linden claims that Second Life cannot be meaningfully compared to an MMORPG. They released a press release on November 14th, 2003 (which you can find here on their website) in which Rosedale, their CEO and a defendant individually in the case, says,

“Until now, any content created by users for persistent state worlds, such as EverQuest® or Star Wars Galaxies™, has essentially become the property of the company developing and hosting the world,” said Rosedale. “We believe our new policy recognizes the fact that persistent world users are making significant contributions to building these worlds and should be able to both own the content they create and share in the value that is created. The preservation of users’ property rights is a necessary step toward the emergence of genuinely real online worlds.”

Is that not directly and meaningfully comparing Second Life with Everquest and SW:G? In fact, it’s not just comparing them. It’s admitting they’re they’re all persistent worlds and that Linden is implementing a feature that the others don’t have (just as Second Life doesn’t have, say, end-game raids as a feature).

Virtual Land

Now we move onto how Linden views the “land” that Bragg “bought.” They write:

“Defendants further admit that, subject to the Second Life Terms of Service and other applicable rules and policies, Second Life users may also purchase and sell representations of parcels of “land” in Second Life, hereinafter referred to as “virtual land.” Defendants deny that Second Life allows for the actual “conveyance of title” in “virtual land,” as “virtual land” is not property to which one may take “title,” but instead a license of access to Linden’s proprietary servers, storage space, bandwidth, memory allocation and computational resources of the server, which enables the experience of “land” and the things that one can do with “land” on the Second Life platform.”

and

“Defendants admit that Linden sells to Second Life users rights to “virtual land” in Second Life, namely, a license of access to Linden’s proprietary servers, storage space, bandwidth, memory allocation and computational resources of the server, which enables the experience of “land” and the things that one can do with “virtual land” on the Second Life platform. Defendants deny that “Linden no longer owns the very world they [sic] created.”

That’s all well and good, and that is reflected in reality. Virtual land is not land (just like a virtual sword is, in no way, a sword) but simply a set of permissions allowing the user to access computing resources and/or data. If only Linden had actually consistently taken this position I would have all the sympathy in the world for them in this case. However, Linden admits that:

“Rosedale was quoted as saying “We launched Second Life without out of world trade and after a few months we looked at it and thought, ‘We’re not doing this right, we’re doing this wrong.’ We started selling land free and clear, and we sold the title, and we made it extremely clear that we were not the owner of the virtual property.” Defendants aver that the references to “selling land free and clear” and selling “title” are metaphors or analogies to the concepts of ownership of real property, as what is “owned” with respect to “virtual land” in Second Life is in fact a license to computing resources.”

I think it’s one thing to make what may come to be looked at as a mistake (for all of us who “sell” virtual “stuff”) in language; saying we are “selling” a “thing” rather than selling a service that is virtually represented as a “thing”, in other words. We don’t really have a compact, convenient way to refer to what we sell at this point though, so we default to saying we “sell objects.”

However, I think that there’s a huge difference between using a language of convenience, and actually clarifying, as Rosedale did in the quote above, that what you mean is literally what you say: That users in fact own the virtual property, that Linden has granted them title to it, and that Linden does not own it.

Bragg’s complaint is, among other things, that Linden represented that it was selling virtual property that he would own and could freely trade or sell to realize a profit, and I don’t see how one can argue that Linden wasn’t representing that to the world when their CEO is making that very claim. That it’s a fairly nonsensical claim insofar as there is no property there to own doesn’t seem to make much difference. It strikes me as a classic bait-and-switch to proclaim that people can invest in property that they will have title to, make explicit that you do in fact mean that, accept the money, and then say, “Oh, no no, we didn’t really mean that at all, but we’re going to keep your cash anyway.”

The Hacking Allegation

This requires a little extra background. Linden makes money by, among other methods, auctioning off plots of “virtual land” to customers. The auctions are done via the web, and the minimum bid is $1000. The auctions are run on the website by going to URLs published on the site.

The method by which Bragg obtained the virtual land that Linden alleges he got fraudulently was by going to a URL that had not been published yet. There are quite a few details involved but they’re so specific to Second Life that they’re not very interesting in terms of broader implications. The interesting part here is that Bragg was able to access this URL, which was not protected in any way aside from being unlisted on Linden’s site, and win a land auction for a very low price ($1 I believe), since nobody else was bidding.

Now, I think you’d have to be chronically naive or a bald-faced liar to deny that it’s pretty obvious that Bragg (who is both an attorney and an experienced Second Life user, and who had purchased land previously from Linden for amounts up to $1700 or so) knew darn well that Linden would not approve of winning auctions in this way.

On the other hand, Bragg didn’t have to hack into anything to gain access to the auction. He didn’t have to trick the system in any way. In fact, as far as I can tell, the actions Bragg took to buy the land were literally exactly the actions every user takes to buy land. The only difference is Linden hadn’t yet made users aware that that piece of virtual land was up for auction.

It’s a tricky one and I’m not sure which side I come down on. One can argue, as Bragg is, that the auction was available, that Linden accepted his money and thus he paid for the land, and that if other users had not been made aware of the auction yet, the fault, if there is any, lies with Linden.

One can also argue that Bragg clearly (there are quotes from his in-game messaging in the document we’re talking about that make it patently obvious) knew Linden’s management wouldn’t approve of this and that the land being available was a bug, and that by exploiting that bug Bragg was committing fraud.

Every online game developer has to deal with the school of thought among some players that holds that code is law, and that if the code allows it it cannot be wrong. A player can’t and shouldn’t be, says this train of thought, forced to decide whether a given functionality is or isn’t a bug. If it’s there and it’s accessible to the user, there’s no reason he shouldn’t use it.

Taken to an absolute extreme that line of thinking gets pretty ridiculous, but where does one draw the line? Should Linden be able to cut off the virtual property it had sold to Bragg because he did something they don’t approve of? I have a hard time classifying what Bragg did as hacking any more than I think that someone who uses a gold duping bug is hacking. I have no problem with virtual world developers retaining the right to be judge, jury, and executioner since they’re private spaces, but once you start telling your users that they’re making investments, not simply being entertained, I think that right needs to be tempered considerably.

Anyway, I haven’t decided yet what to think of the hacking counterclaim.

Conclusion

All in all I’m kind of waiting to hear from a few different legal experts for their opinion on filing, but I find myself sympathizing with Bragg, despite the fact that he clearly knew he was exploiting…something (not sure I’m comfortable calling it a bug, and I definitely don’t see it as hacking). I want to come down on Linden’s side (even though I do not care for the manner in which they operate) because it’s probably good for us as virtual world operators long-term, but with Philip Rosedale out there as CEO inducing people to invest in his world by telling them the exact opposite of what Linden claims when the rubber meets the road it just feels like fraud to me, on a gut level.

Summary of Case

Very briefly and without going into all the various specific complaints, this case was brought by Bragg against Linden after Linden banned Bragg’s account. Bragg used what Linden alleges was a fraudulent technique to win virtual land auctions that were not generally visible to the Second Life population at very cheap prices, allowing Bragg great profit when re-selling that land. Bragg had also previously “purchased” virtual land in SL in a way that Linden has no complaint with, but when he was banned, he lost access to his purchased land, and is suing as a result.

Linden essentially alleges that because they believe Bragg engaged in fraud at their expense, and because they don’t actually sell virtual land (just the service of computing power that is represented as land), they should not be prevented from banning Bragg and cutting off his service.