Second Life “land” dispute moves offline to federal
November 13, 2007 by David MifsudThe issue in dispute deals with a user of the popular online game,
Second Life, who exploited a flaw in Linden Lab’s online auctions. Marc
Bragg used the flaw to purchase virtual land at well below market value
and as a response Linden Lab seized his virtual land and shut down his
account. This case is being touted as the first dispute over ownership of
virtual land that will set precedent for other online games, but this is
simply not the case. The real issue here is not so much IP, as it is
contract.
Bragg agreed to Second Life’s terms of service (TOS) when he first
created his account. Therefore, Bragg and Linden Lab are bound by this
agreement and it governs all issues in relation to Second Life. Looking at
the relevant sections of the TOS makes it apparent that Bragg does not
have a strong case at all.
The two sections of the TOS that are important to examine are 2.6 and
5.6, which both appear to side with Linden Lab. Section 2.6 states that
Linden Lab may suspend or terminate an account at any time, without refund
or obligation to the user. (http://secondlife.com/corporate/tos.php)
Therefore, Linden Lab has the right to terminate Bragg’s account without
having to compensate him. Section 5.6 states that the user will indemnify
Linden Lab from claims arising from breach of the Agreement by the user or
from alleged infringement by the user.
(http://secondlife.com/corporate/tos.php) In this section, Bragg has
agreed that Linden Lab will not be liable for losses suffered as a direct
result of him breaching the Agreement, which Linden Lab claims Bragg had
done by trying to obtain the virtual land unfairly.
However, the actions taken by Linden Lab may not have been the best
solution. The fact that Bragg only accessed the auction page by changing
numbers in the URL is not a serious offence in and of itself. Bragg did
not get the land through illegal means such as hacking or cracking the
system. This is no different than someone purchasing an item from an
online store that clearly has been mispriced, the solution to that is not
to cancel the person’s account and never do business with them again,
instead it is just to cancel the order. This is what Linden Lab should
have done.
By shutting down Bragg’s account, he lost all his copyrighted work in
Second Life. If Linden Lab just took the land back and gave Bragg his
auction money back than the issue of land ownership and IP would never had
been an issue. It seems that Linden Lab is trying to set an example for
all Second Life users that this type of behaviour will not be tolerated.
Cheating is a problem in the online gaming world and users do expect the
managing company to actively work to eliminate all cheaters to allow for a
fair and fun experience for all the rule abiding users. Nevertheless, I do
not believe that what Bragg did constituted cheating and deserved this
strict a punishment.
The point was also raised that “Linden Lab has long maintained that
virtual “property” owned by its residents in Second Life belongs to the
players.”
(http://arstechnica.com/news.ars/post/20070603-second-life-land-dispute-moves-offline-to-federal-courtroom.html) This ownership right, given through
section 3.2 of the TOS, allows the user to retain copyright and other IP
rights with respect to content you create in Second Life, to the extent
that you have such rights under applicable law.
(http://secondlife.com/corporate/tos.php) What this section gives the user
is protection from other users or even Linden Lab from copying a user’s
content and trying to pass it off as their own. Bragg cannot claim
copyright infringement; he would still own the copyright to his content
and could recreate that content in another virtual game similar to Second
Life.
Furthermore, section 3.3 of the TOS states that Linden Lab retains
ownership of the account and related data, regardless of the IP rights the
user has in content the user created or otherwise owns.
(http://secondlife.com/corporate/tos.php) Since it owns Bragg’s account
and the related data, it has the right to terminate his account because
Bragg does not own it. So Bragg still maintains the copyright in the
content he created, he just cannot access Second Life because Linden Lab
revoked his privileges for violating the rules.
In conclusion, it was Bragg’s own actions that led to the legitimate
termination of his account by Linden Lab as allowed by the TOS. It appears
that Linden Lab has a very strong defence to Bragg’s claims and will
likely prevail.
2 Responses to “Second Life “land” dispute moves offline to federal”
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Bragg doesn’t have a solid claim to his virtual land or the real money that he invested in it, because he waived these rights when he agreed to the unsound terms of service. Although the TOS grants the player copyright and “other intellectual property rights,” it does not clearly define what said rights entail; instead, it elaborates on Linden’s royalty-free rights of reproduction, use, and distribution, as well as its “perpetual and irrevocable right to delete any or all of your Content . . . without any liability.” Linden also states that regardless of players’ IP rights, it retains ownership of their account and can terminate and block access to the account at its discretion, without compensating the player. Bragg invested in, laboured for, and authored the content of his account on Second Life. Arguably, Bragg retains moral rights to this content; the work should be attributed to him and only associated with Linden or others on terms that he consents to. The morality of the author’s IP right is undermined when the author’s access to the property can be revoked, or the property made to disappear, at the owner’s discretion. Bragg’s IP rights are as virtual as the land that he created—and are likely unenforceable. As a presumably consenting and capable adult, Bragg freely contracted away most of his rights to Linden. Bragg could challenge the terms of service with Linden as inequitable, but given his own misconduct, it’s unlikely that the court will grant him an equitable remedy.
I agree that it is Second Life’s terms of service agreement which has opened the online game to a host of new legal disputes by identifying players’ right to retain IP protection for the digital content they create. Despite Linden Lab’s strong defence to the plaintiff’s claims, SL must address the increasing potential for dispute.
Recognised as a social space, it has also become an established entrepreneurial environment. An estimated 200 companies have entered the virtual world. The online game has acknowledged the investment of brands such as Coca-Cola, BMW and Microsoft. Envisaged as a new marketing tool, this new online arena currently trades over $1million each day. Evidently, due to the lack of precedence surrounding virtual property and the enforcement of these IP rights outside of the virtual sphere, Linden Lab must proactively protect player’s IP. The value of their IP diminishes by the uncertainty surrounding its protection.
I think, SL’s continued success mandates the establishment of an online dispute resolution procedure which would provide recourse to players without the time and costly burdens of litigation. They must appreciate that as the value of virtual property increases, the number of disputes will also rise. To ensure sustained investment by leading industry-players SL must facilitate the enforcement of players’ IP rights. Virtual property is a relatively new concept but as the number of players grows, IP rights in the virtual world will increasingly become a subject of dispute. It’s necessary for Second Life to acknowledge this to ensure continued success.