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Second Life News - TOS Not Binding
Posted by Keith Cross on Jun 01, 2007 | 34 comments in our forums
Reuters has reported on a court case where a Pennsylvania judge has ruled against Linden Labs that the Second Life's Terms of Service are not legally binding.
SECOND LIFE, May 31 (Reuters) - A Pennsylvania judge has ruled that Linden Lab's terms of service for Second Life residents are not legally binding, according to court papers filed on Wednesday.
The ruling came in the case of Bragg v. Linden Research. Marc Bragg, a lawyer from West Chester, Pa., filed suit in 2006 claiming that Linden unfairly terminated his account, causing the loss of his virtual business venture. Linden filed motions to dismiss the suit and compel Bragg to arbitrate his claim out of court, consistent with Linden's Terms of Service.
Judge Eduardo Robreno ruled on May 30 that Linden's Terms of Service constitute a "contract of adhesion", allowing the suit to proceed.
"Linden presents the TOS on a take-it-or-leave-it basis," he wrote. "In effect, the TOS provide Linden with a variety of one-sided remedies to resolve disputes, while forcing its customers to arbitrate any disputes with Linden."
"The arbitration clause is not designed to provide Second Life participants an effective means of resolving disputes with Linden. Rather, it is a one-sided means which tilts unfairly, in almost all cases, in Linden's favor," Robreno added.
Read the article here.
Oh boy, you have to love clueless judges. I hope this gets over turned on appeal.
I can just imagine if MMO's will have to employ a third party to mitigate disputes. Monthly fees will go up.
Spurious cases like this just clogs up the courts and prevents meaningful cases from being tried.
Don't worry to much Ciredric, Second Life's virtual economy is built with real money as in if player a spends x dollars to buy player b's product player A just spend REAL LIFE dollars. Honestly they terminated some guys account for something thats done everyday in the real world probably losing him a few hundred bucks, if I was him I'd sue too.
This ruling will have very little effect on other games, especially since most people get terminated for actual cheating.
Honestly Second Life isn't even a game I dont know why MMORPG bothers putting that predator infested software up here.
SL has no place on this site... Linden Labs do not consider it a game either. It's a 3D large scale multiuser platform. It's a glorified 3D chat room with a heavy focus on virtual naughty.
And I agree 100%, the ruling on the TOS will not effect other games that do not have RL business set up in the game using real currency. Games like EQ2, WoW, DAoC, etc, the TOS/EULA's are 100% enforceable.
Reposting:
This is the first time i think, that a TOS have ever been tested in a court.
Im glad however, as most TOS remove all responsibility from companies to provide any form of service for the money.
Not even your cable company uses such removal of responsibility in there user agreements.
It is about time that MMO companies are required to ensure a quality of services to its customers, instead of no responsibility at all.
Currently, they can discontinue the game, turn off the worlds, and still bill you.
Very true. I think this case could have consequences for the MMORPG genre. This is just the beginning and how all of us game may very well be effected by this case.
A gaming company can't be held responsible for illegal actions that people choose to do with their game. Look at the rulings in the recent court cases brought against the gaming companies by the families of school-shootings. Games are not responsible for illegal activity! If, they say it's against the rules, and they ban those found doing it.
That is where Second Life is different - it's part of their "game" design for people to spend real-life money in the game. The only other game I can think of is EQ2's Exchange servers - they might have some sticky points there if they tried to shut those servers down - not sure though. I suppose you could try and lump all the "Free-2-Play" Asian-style games that allow you to pay with real money for bonuses in game as well.
If people are buying ingame items or currency in most MMO's, they are in violation of the EULA which has been shown as a legally binding document by a Federal court. The issue with this scenario, is that Linden Labs was not providing customers with a fair dispute resolution process involving real life businesses transacting through their networks.
The fact that the TOS was found not to hold much merit in this scenario, does not apply to MMORPG's in general, as Second Life is a totally different animal, with a completely different business model, and operating under completely different legal terms. SL facilitates real life cash transactions between individuals/businesses, where MMO's in general prohibit the sale of in-game cash and items. The sale of in-game cash and items through 3rd party sites like IGE violates the End User License Agreement for the software. Since the publisher of a game owns the Intellectual Property within the game... the in-game items and coin, for example... a player or company like IGE would require permission (aka license) to perform such transactions.
The very transaction being disputed in SL would already be an EULA violation in most MMO's, not to mention a transgression against the IP rights of the publisher. Two different scenarios altogether.
Actually, a MMO publisher does not need to put a prohibition in the EULA for them to ban a player for buying or selling in-game currency or items. The in-game items and currency are part of the Intellectual Property of the publisher, and any use beyond the scope of intended use without license from the publisher is a violation of the publisher's IP rights.
The mention of it being "against the rules" in the EULA is primarily for the purpose of letting people who are unfamiliar with IP law know that it is not permitted. In fact, if it isn't mentioned in the EULA... do not assume it is allowed. Any and all use of Intellectual Property must be licensed by the owner of the IP before such a use is legal.
And, it can be shown that the sale of in-game currency coupled with "gold farming" can be harmful to a game's virtual economy, thus reducing the quality of the game... it can be said that such activity causes a financial loss to the publisher. If game publishers would grow some mumples, and actually take legal action against sites like IGE, you would see the "secondary market" (the asshat term for black market) dry up pretty quickly.
I long for the day when game publishers begin to enforce the EULA's more strictly and bring the full legal arsenal at their disposal into play. I would dance the happy dance if I could watch IGE pay damages to all the games they screw over. Ooooh, it would be beautiful.
Second Life is not a MMORPG. Linden Labs, the creator of SL, has made such a statement on numerous occasions. Second Life is a platform, not a game. Linden Labs are more a financial brokerage than a game publisher. Transactions that take place through SL are taxable business transactions which fall under the same laws normal businesses must follow in accordance with IRS and SEC regulations.
Two different animals.
There are a number of arguments surrounding this issue on the net today, some people making excuses for Bragg and others treating him as some sort of Virtual Freedom Fighter. He has even posted a note on his website asking for donations to help him with his legal fees, even when this schmuck is a lawyer himself!
The point is, for those of you who think SL is a game, which I do, what do you want to see your host do to players who exploit the system? Personally, I want to see them perma-banned from the game. I believe in investigations, but when the exploit being used is so blantantly obvious, and so carelessly repeated, in my estimation there is no other course of action to take than deleting the account so the community not need to suffer further from a person who obviously will repeat their actions given a chance. If you see SL as more of a money driven virtual society than a game, to me the conclusion is still exactly the same. Bragg's activity could have had an economic impact. No matter how you see SL, IMHO LL did the right thing by deleting his avatar and items, and redistributing his land.
I have also read that today's decision was not a decision in favor of Bragg's case, but rather a decision which will allow the case to be heard in a Pennsylvania court. Hopefully LL will revamp their TOS a little to compensate for this type of thing in the future, but also, I hope Mr. Bragg loses a fortune in terms of his own billable hours while he tries to reinvent his tarnished online image.
Just to chime in on the discussion, but Planetside isn't an MMORPG either, among others on the game list. MMORPG is the commonly accepted acronym, and was a good choice for a domain name for this site - but you're pushing that too far to try and dismiss ad hominem a subgenre of games that you don't enjoy. It may be called MMORPG.com, but for the purpose of this site it might better read "MMO.com". Don't forget that.
That wasn't my reason for posting, though. I thought I should point out that you're all looking at the wrong aspect of the article.
He probably used a script or a hack to improperly buy land against the TOS (likely one of the guys which prompted many changes to the land buying system.) If there's any reason he should lose the case, it's that. He violated the spirit of the agreement intentionally, and is trying to get off on a technicality.
Edit - Bah! Someone beat me to it. :)
Second life, like any other MMO, has many skills that can be developed, lands to be conquered, fun people to group up with, and probably the best #@!$ crafting system in the industry. If you want to only focus on the price of the L, then you are sorely missing the point.
Regardless, either way I think the judge made a bad decision. I mean if he does mean it's he feels a TOS is not legally binding no matter how well it's written then there's a lot of privately owned ventures that are in trouble, not just MMOs.
I think this should be a lesson that internet games should be something build for fun not something which should be used to make money on. In my opinion, Second Life is just a big money pyramid scheme.
Uh... not missing the point here. I simply believe the creators of SL when they say it is not a MMORPG. It's a platform that you can create games in... but it is not a game. To say SL is a MMORPG is to say that AOL Instant Messenger is a MUD.
What level is your character in SL? How much experience do you need to gain to achieve the next level? What quests are you working on in SL? What combat mechanics does SL use? Heck, what genre of game is SL?
Have you ever noticed that Linden Labs calls their customers "residents" not "players"?
The skills you speak of are not gaming skills, there are no lands to be conquered. Groups are more like organizations, or chat spam lists. Any game features you encounter are scripted in the SL platform... they are not part of a game published by Linden Labs.
Two different animals altogether. Anyone who has logged into SL should be able to see the differences.
Terms of Service - TOS - are codes of conduct. They are not the same as an EULA. The EULA is a legally binding document which provides information on what license you have to use the software in question. The TOS is a guide to how you should behave while using the software. While they oftentimes can have similar information in them, one involves Intellectual Property rights while the other dictates what you can and cannot do while using the service the software accesses. You can, in some cases, be following the EULA to the letter but be in violation of the TOS.
This case is based more on Linden Labs using the TOS to prevent users from accessing adequate consumer protection and dispute resolution resources. The TOS unfairly favors LL in such matters, and the court ruled that their TOS is not binding in the way LL tried to apply it. This decision has little to no bearing on MMORPG's as the issues involved in the court's determination of the TOS not being binding in this case would never come up with an MMORPG. Two different types of applications.
Fine, it's not an MMORPG. It's still an MMO. Your analogy is a bit flawed, also. To call SL an MMORPG would be calling a telnet based chat service a MUD - it has the basic elements of the more complex game, but was never formed to be that. This is why many people have no problem with SL or There being called a MMORPG, because it can contain both gaming and roleplaying if he players add that to the virtual world toolset the developers present.
I stand by my previous statement, that the theme of this site is MMOs and not solely MMORPGs. Arguing whether it deserves the "RPG" suffix is pointless, it should be on the game list here until it loses its MMO aspect.
Mind you, Jessie is a sim bound by no other rules than those laid down by Linden Labs, there are other sims, by the number that employ combat rules enforced by the sim owners, but there are a few left that are open to the user, the owner, and the scripter that created the wares employed.
The one thing your argument is missing, is an actual argument. MMO's have listed their members as terms other than players in the past. Each has a title, rebel, horde, alliance, imperial, fyros, zorai, residual self image, blah. LL calls their players Residents. The title a company gives their players is of little use to proving anything. The majority of SL Residents will admit to "playing" second life. They are "players". I used to have direct conversations with people like Uri Skylar and Anshe Chung. They started as players, and they are still "playing." Whether it be for fun, profit, intellectual advancement, or fun, They are still playing.
Furthermore, you keep conjuring the term "chat." Second life certainly has it's share of chat, yet I have not seen nearly as much frivolous chat in SL as I used to see in swg, lineage 2, or ryzom. I have spent my time moving, exploring, building...The "residents" in mass are mostly partying, grinding (see building an unleveled skill set), etc. There is also the problem tha SL chat funtions are still 4 years behind the current SOE swg a and eq2 chat systems. IM programs would beat LL into the ground. You did chat occasionally in sl right, or did you log once, scream suck, and move on.
You call them different animals, I think you are doing nothing more than limiting yourself. You said anyone who logged in should see the difference. I have logged in for over two years. I do not see a single difference. I see the MMO I always wished others could have been. The base creator of swg would agree with this notion, and is in the process of creating something original from the minds of those who pay to take part in a metaverse.
So, you have Ryzom, with no defined content on the mainland, all user created, WoW, which is scripted from beginning to end-game, EQ2 and SWG, which allow a little freedom but lock you into the defined best and greatest, and SL which allowes you to define all of the above (all of which can be done without spending a dime: (yes, it takes the overused mmo term "skill."))
Does SL belong here, well yes. The MMO idea is constantly progressing. SL belongs here as much as Ryzom, UO, There, old SWG. They are all related in intent. Even EU is an invocation of what an MMO can be, even with real life funds applied (since you find them so important). SL is an MMORPG at it's core. I would say anyone that has ever logged into it for more than 30 minutes would realize as such.
Let me ask you since you have read it all and seem to have such vast knowledge on it...First of all he did not "exploit" there website he found a page that was not meant to be seen by the public yet.ALOT of ppl can and do do that with alot of websites.Number Two Linden Labs had the webpage up the prices listed and allowed him to purchase them at that price.Abit unethical ? perhaps,illegal no not at all.
Look at it this way say during christmas of this year you walk into a Wal-mart off in corner you find about 20 Playstation 3's all priced at 40 bucks each,now keep in mind this is not in a protected or employee only area this is in the store where anyone could walk up to them you pick them up head to the check out the guy rings you up charges you for your purchases and you walk out the door.Would you have done anything Illegal?
Point here is this was Linden labs screw up and Linden Labs screw up alone.They should not have had webpages online that could be accessed by the public and set up to where someone could purchase a item if they did not want it sold.I may not agree with what they guy done but he did NOTHING illegal period.So Linden Labs rather than just handle it in a proffessional manner instead bans this guys acount keeps all his assests and tries to end it hiding behind a TOS they thought could protect them.Good call by the judge and I hope at the least LL has to give the guy his money and account back he should not be held responsible for the idiots who maintain the website.
Uh... MMORPG.com seems to be pretty straight forward as to the content the site deals with. By definition of both LL and MMORPG.com... Second Life does not belong here. And, aside from the fact SL doesn't really fit in here... i personally wouldn't want to associate MY website with a platform like Second Life, where child porn and rape-play are part of the scene.
Second Life probably won't get removed from MMORPG.com... so there is no need to get your nickers in a twist. I'm just expressing my opinion that it doesn't belong here.
I wholeheartedly and emphatically dissagree.
Second Life may have a similar user interface to actual games... but it is not a game. There are games developed within the SL platform... but SL is not an MMORPG at its core. SL does not compare to Ryzom, UO, or SWG... totally different animals. You're just being silly now.
I mean hell... the creators of Second Life specifically state that it is not a game, but a platform with which to build upon. You can create games to play within SL, but it is pretty much a 3D modeling program stuck in perpetual "walkthrough mode". And if you think that someone would think it a game after 30 minutes of walking around... than you really are misguided.
Explain to me how SL is a game, and not a platform to build applications (such as games, if you like).
I guess its just me but 90%+ of the responses I saw here have nothing to do with the article I read.. lets just define that as the "ruling".
The judge in effect ruled that the ToS wasn't binding in the fact that the plantiff could seek outside relief. Based more or less on the fact that there was no neutral arbitration offered in this case.
It has nothing directly to do with cheating, in game sales or etc..
The core of the ruling if upheld would have impact on all mmo's (or could). In the fact that it is dealing with an account termination. Now the way those are handled are the "we don't talk about account action" blanket statements. With the "write to this email" and you may or may not hear anything.
People are banned that need to be banned .. and probably the vast majority of people banned needed to be.
However, in the case of people that were lets say banned due to a company "mistake". Well they have very little recourse .. and have to hope to be unbanned.
Do you really think the average person is going to pay the costs to go to court to try and get an account unbanned? That would more or less be the real question. In fact nothing about this even says he will get what he wants. All the judge did was allow this case to continue for the moment.
Personally if I lost an account.. and the company wasn't being helpful (lets say I wasn't cheating.. makes the example easier). I really can't see going to the extent of filing in court (cost and the amount of my personal time wasted) are not worth it. Plus the fact I don't think I'd really want to be in a virtual product owned by a company I sued to stay there.
Drive up costs because companies have to hire "neutral" customer service reps? I think not. However, these companies on average offer pretty crappy customer support for the non cheater... We just usually focus on the people who do cheat. Then again if you don't have issues within the game you'll never be affected by crappy customer service either.
No real opinion on this.. I hate courts.. (btw I was in the Ultima Online "volunteer programs" when they went bye bye due to a court case.. so don't think I'm sympathetic to this person bringing a lawsuit. I was just trying to post how I took what the ruling stated aka my opinion and that's it. I feel the courts time could be better spent on more important matters...)
You can twist what happened in as many directions as you wish, you can apply an analogy or an argument to just about *anything* these days to make it look like a positive. If we wanted, we could argue semantics long enough to show how Bragg found the answer to end world hunger. The one thing you can't argue away are the facts. He fished out a backdoor on LL's website, purchased land for a buck, then sold it at market. Perhaps you have a scewed view of the world, or you like to see company's get ripped off, I don't know, but this was virtual stealing. Bragg is a lawyer, not an idiot, he knew what was going on, and he got caught. He lost.
If you think he deserves more, go be a sucker and donate to his legal defense fund, you know the one he uses to pay himself?
I think this is an important ruling, a fair ruling, and one that will only help the gamers.
I'm under the assumption here that we can safely say that the MMO business isn't the most honest business out there. If it were, then we woudn't have things like the controversy surrounding D&L, Vanguard, SWG, Mourning, Horizons, EVE, etc. This business is one that thrives at being able to get away with anything that serves the business interest, whether or not it's right.
Contracts aren't simply a rag to wipe a lawsuit off of a foul and smelly behind, and they aren't a license to defraud. The ones that generally are written to do that generally don't hold up. Contracts aren't things that prevent legal claims. Contracts are devices that give legal claims, to both parties.
um, the illegal activity you speak of is, and i quote "shool-shootings". are you really comparing buying/selling ingame currency to school shootings and saying they're both "illegal activities", as in, the same thing? because one you can get the death penalty for (like in real life), and the other you might get an online gaming account banned.
are you really making and defending/redefending this argument?
really?
do you spend hours arguing whether "a" or "an" should preface an ancronym such as *sf*, which you you say it outloud, begins with an "eh" sounds, hence "an" would be used, but if you say the words it's short for - strike force, then "a" would be used?
because this is one of those "i found something a little off" argumenets that THOSE type of people will go on and on for months about so that they can 'win teh interwebs'.
grats, you won. it's not an mm-anything, in your mind.
back to the topic.
eve online gives it's ingame currency a value in that they officially sanction ingame currency to game-time-card transfers.
project entropia is all about an established PED - dollar conversion.
second life is all about the real life moneys.
games like diablo2 have had a huge selling of their virtual items for real life cash pretty much since it's inception.
ultima online has always had houses/characters/etc for sell it seems and that's what? 10 years+ running?
why do you think that most all games (ccp/eve online being a glaring exception) go out of their way to not allow their employees to 1-play on anything other than normal accounts (no dev enhanced account when you're playing your toon), and 2- reveal their employee status to anyone that plays the game; with the penalties for both being rather stiff (in some people's opinion), including instant termination?
now, if the people who actually play these games did NOT want there to be an out-of-game marketplace for these games, i.e. buying ingame "gold" with real world money; then said market would not exist.
what a lot of people fail to realize, but some of the smarter gaming companies DO realize, is that these people paying2play the MMO games, are the ones buying the online gold for real world money. why would they do that if they were already enjoying the game? why would they do that if they enjoyed farming to get all the game currency?
now, think logicially, your opinions have no place here; but follow this thru logically -- if there are enough actual pay2play players who are buying ingame currencies in all these games; then, what happens when you cut off that supply? do they all of a sudden go, "oh hey, i think i'll go do boring things that i hate, which is why i bought gold in the first place, in order to keep playing this game at the level i'm accustomed to"? or would they logically go, "man, this sucks, i quit".
opinion all you want to, but gold sellers are a HUGE market. this market would NOT exist, if the players themselves did NOT want it to exist.
it's a given that only a small minority of players post on official forums of any game. a small percentage of the paying population. these are the places where you read of gold farmers spoiling the game. they're obviously making the game more enjoyable to the silent masses, otherwise the gold farmer business wouldn't exist.
see?
the judge struck down a specific clause that Linden had in the TOS regarding 1 sided arbitration in the case of real life money disputes. Unlike any other SANE MMORPG operator (and please no more discussions as to whether or not SL is a MMORPG, it really doesn't matter) Second Life chose to declare virtual foozles as the property of the players, and assign a real world value to them. They built the game around the ownership of real world property and the use of real world cash transactions for the non existant property.
Every other virtual world operator has had the common sense and sense of self preservation to not do this.
The clause in Second Lifes TOS that was struck down was one involving property disputes and real world value. In this regrd Second Life is NOT like any other MMORPG. The clause and the arbitration attempts are more closely akin to E-bay or a virtual poker site. It has no real impact on any other MMORPG's (except possibly for some degree of risk over at SOE's Station Exchange).
The gold sellers cannot assign a legitimate and legally binding real world value to WoW gold or EQ plats. But Linden the games operator did just that as a core element of the service. the court simply said that since real world transactions and value are a core element of their service, the dispute resolution mandated by their TOS cannot be held as binding. In essense a TOS cannot be used to deny someone the recourse of the courts. So "residents" can sue.
This is something that anybody with an ouce of common sense saw coming the moment Second Life turned on the servers. The only ones who couldn't see it were Linden employees (get better lawyers dudes... or at least listen to them). It has ZERO impact on the other more traditional online games.
If this guy was working within the confines of the system, even if the system was broken, then he should not be punished. If he was manipulating data and somehow altering the mechanics of the game, then ban him.
Players play to win.
Game companies are in it to make money.
Unfortunately the game companies hold all the cards.
Reread what I typed again - slowly this time.
I mentioned the school-shooting cases because they were high profile court cases involving lawsuits against gaming companies. The gaming companies were found to be non-liable. That was my point. Not sure what point you were trying to make?