Today on Virtually Blind Benjamin Duranske covered the beginnings of the discovery phase of the Bragg vs. Linden Lab lawsuit. While he was unable to offer up opinions on what the documents contained for legal reasons (of course), the particular selection of quoted documents is telling enough.
For those of you unfamiliar with the case: Bragg's virtual land in Second Life was seized by Linden Lab for a terms of service violation, and he's suing them on the premise that they would need a more solid legal foothold than that to take assets from him. In their defence Linden Lab is arguing that virtual assets are merely representations of a service being granted and have no inherent value of their own. Bragg's case now revolves around proving that the company has been marketing virtual assets as actual things of value, rather than side-effects of a service.
Now that they are entering the discovery phase of the case, Bragg is asking the court to force the company to hand over relevant evidence. There were two things quoted in Duranske's blog post stand out for me:
Plaintiff’s subjects of discovery include: the allegations and claims set forth in the complaint; representations/communications with third parties by Defendants; the statements, allegations, and admissions made in Defendants’ answer/counterclaims; the use of metaphors in communications by Defendants with third parties including consumers, venture capitalists and other investors; Defendants’ procedures and information surrounding the land auctions in Second Life; the sale of virtual land and the representations made about such sales; the revenue and/or profits obtained from land sales and taxes on such land sales; the drafting of the Terms of Service (“TOS”) Agreement; and, Defendants’ alleged counter claims. Plaintiff also indicated that discovery is needed to determine whether additional parties will need to be joined as Defendants.
... and later:
Plaintiff opposes a blanket confidentiality agreement and that the scope of any proposed confidentiality agreement was unclear to Plaintiff. No such proposed confidentiality agreement has ever been provided to Plaintiff. Plaintiff indicated his willingness to consider a confidentiality agreement to cover specific trade secrets and believes that any such information should be considered on a case-by- case basis. It is Plaintiff s position that confidentiality is particularly inappropriate given that the Defendants sought to obtain confidentiality through their arbitration clause, and that such clause was deemed unconscionable.
This leaves me with many questions, but before getting into them let's dissect that second paragraph because it's a bit dense. I'm not a lawyer but I think what this says is that confidentiality agreements, if they exist with Linden Lab, aren't legally binding in any way because he's never seen one and never had an understanding of what one might mean, if anything. On top of that, he offered them the option of one and they didn't take him up on one. Finally, if Linden Lab wanted to keep anything confidential, they lost that fight back when they lost the arbitration clause.
Perhaps a lawyer can chime in at this point and answer the following questions:
- Does that first paragraph referring to "communications" with various parties include chat logs? EVERYBODY's chat logs? Meaning that not only are our chat logs not confidential but may soon be a part of this case's public record?
- Is it implied here that other people might become defendants in this case as a result of what is discovered? What would make them liable here?
- Is he asking for the records of all previous land sales too?
- Does the official lack of real confidentiality dispense with that long-held rule that screenshots of avatars need to be made "with permission"?
I have always believed our chat logs not to be private, or to be private in the bazillions of common conversations only if there was no pointing AR requiring investigation. As far as I remember, in the olden days the chat of suspected underaged avatars was scrutinised, and I vaguely remember it being, if not officially noted as subject to analysis, then believed in the common wisdom. I don't see why it would be otherwise. If LL is held responsible (not just by outsiders but by us) for maintaining order then I would imagine they'd have to have a few ways to do it.
i'm no lawyer, but the way i see it, in as long as the data is recoverable and on a server somewhere i think is can potentially be put into evidence and the public record as long as it's relevant and there's no confidentiality agreement. even if there is an agreement, it can still be put there and the only recourse is to sue the other party for violating the agreement, but by that time it's out in the public.
as far as Second Life goes, everyone who signs the ToS allegedly even explicitly gave Linden Lab authority to disclose any information about them (can be read to include 'private transmissions') for various reasons, but it all basically comes down to anything any time at their discretion. (section 6.1)
to be specific, in answer to your first question: yes, EVERYBODY'S chat logs are fair game according to Linden Lab. in fact, if still in doubt, you should realize that Linden already disclosed private alleged conversations between residents into the public record as part of this case (in it's counterclaims filing). they're alleging that more than one person is involved too, but so far have only identified them by avatar names at this point, what's more, Linden has already identified those avatars as possibly having discoverable information related to the case and will probably eventually seek deposition/testimony from them.
so according to Linden Labs, everybody's chat logs, personal information, any of use of the service at all are all supposedly confidential until Linden Labs decides they're not (like they did here). and like the avatars here who aren't counterclaim defendants, you don't even have to be a target of a claim to have your private alleged conversations publicly displayed if it's in their interest.
That's the scary part - even the ToS aren't legally binding in any way. See http://metaversed.com/31-may-2007/second-life-terms-service-not-legally-binding
What concerns me, however, is that while we can kind of count on Linden Lab to not release our private information completely arbitrarily, this lawsuit may bring it all out into the public record and make it available for any number of strangers to do with as they please.
I know this was several days ago, but here's my take on those 2 paragraphs, and no I am not a lawyer either.
I think the first paragraph is only referring to the Defendants' (LL) communication with others. Meaning, who LL has chatted with, emailed with, interviewed with and so on. I'm guessing they are looking for statements that LL says the stuff you own in SL are assets (your money, land, objects). So it would be everybody's chatlogs, but could be any chat logs that LL employees had with people.
For your second question, I think they just made a statement to leave the door open to a class action lawsuit. I'm guessing this may also be part scare tactic to convince LL to give the guy what he wants.
I'm not sure I understand Zaed's comments, given the context of the case, and one thing to try to keep straight. Bragg is the plaintiff, LL are the defendants described in the document so Bragg is the one trying to pull everything out in the open.
To the third. I think Bragg and his guys are pretty much asking for everything. That's what lawyers do. Ask for everything and see what LL will give up. Later, I'm sure there will be a fight about whether LL gave everything they should have according to the documents.
As to the confidentiality stuff, I think that what is going on is that LL said that they would release information but only on the condition that all the material be considered confidential (and that he can't disclose publiclly). That's the blanket agreement referred to. Bragg is saying he doesn't want to agree to that, and they are playing dumb as to what a "blanket" confidential agreement would mean. It also appears that, during arbitration, LL tried to get Bragg to agree to a confidentiality agreement, but Bragg said no under the condition that it was "unconscionable".
In my opinion, that last part is LL trying to keep their company secrets (not just trade secrets) and other business operations from going out into the public. Bragg wants the ability to be able to publicize as much as he can (which I think is a partial attempt at him trying to payback LL for taking what he thinks was his.)
Its a very complex case, but I'm guessing that LL will have a problem showing that they did not promote everything as being "yours". Though I don't think it's right for Bragg to be able to publisize anything that's not a "trade secret" that they find out in the discovery phase.