Wut Oh, Part One
As commented on by Raph Koster and Matt Mihaly, a ruling came through in the Bragg v. Linden lawsuit: Linden Labs gets spanked hard, and the concept of click-through Terms of Service along with it. To quote Matt:
Agreeing to arbitration is part of the Terms of Service for using Second Life, and Bragg admits he clicked ‘accept’ on the ToS screen before accessing SL. The judge launches into an attack on multiple parts of Linden’s ToS, saying that they represent a contract of adhesion by virtue of the one-sidedness, the inability to negotiate an alternative with Linden Labs, and the fact that Linden’s ToS says arbitration only for the customer, but that Linden can ban people at any time, for any reason (that is effectively what virtually every ToS for every MMO says).
And, to quote Raph:
What it boils down to, though, is that the court is saying that some pretty common elements of TOS agreements may be considered unfair by law — and in this case, the fact that Linden deals in real money makes this point especially acute. Ironically, the fact that Bragg is a lawyer himself actually hurts his case (since it can be deduced that he of all people should have been able to parse the TOS before agreeing to it).
I’m not a lawyer – I don’t even play one on TV. But in my admittedly heavily biased view, knocking out the legal standing of TOS agreements may well make it difficult, if not impossible, to actually regulate — and thus to actually, you know, operate an MMO.
Interesting development, indeed. On the other hand, what we’re more likely to see, I think, is TOSes being tightened up to reflect the results of the ruling and a lot less sloppy in dealing with players when they have complaints of this nature.
But it is scarifying; at worst case, it really could make MMOs not worth being involved in, in the US, at least. However, there is still along way to go on this case; things are just getting started.
Damn right Linden dealing in real money makes this “acute.” This was staring everyone in the face right when SL launched.
Live by the sword, you can die by it. Overhype + bragging about currency exchange + nontransparent policy enforcement = constant threat of legal action, judge deciding the reality of a virtual world.
On a closer reading most of it doesn’t look particularly applicable to all TOS agreements, but IANAL.
In particular, the procedural part of the ruling on unconscionability is based in part on there being no reasonably available market alternatives. (In that no one else sells virtual land for real cash the way Linden Labs does.)
It’s hard to see how this could apply to a diku-based MMO without those features, (there are quite a few alternatives at this point) so this doesn’t appear to apply to TOS’s in general. (At least in California – contract law varies greatly from state to state, but this was interpreted by California law since Linden Labs is headquartered there.)
Other parts of the procedural unconscionability ruling are fairly easy to work around – having the arbitration section be under its own heading and having links to information about arbitration available on the game website, for instance.
The substantive portion of the ruling also appears to have workarounds for most of the problems. A couple of them (up-front arbitration costs, required locations for arbitration) might need to be substantially changed, but those are features common to contracts covering interstate commerce, and well-tested in court on their own. (And the court indicates that a few problems aren’t a major roadblock to a ruling of conscionability under California law, it was the large number of them pervading the agreement that led to the ruling.)
Looks to me like a case of a badly written TOS, not the TOS concept in general.
In terms most of us can understand… One sided contracts aren’t contracts. Basically, most TOS were never enforceable because they were so one sided.
Consumers have rights even if they only pay you 10$ a month for a service.
MMOs won’t die, they’ll just get TOS that are fair to customers. It’s a win for everyone.
Righto that it’s Linden Labs TOS that’s the bugaboo here; one of the prime points of the case was that the arbitration clause was buried and not under a separate heading.
Even if it’s one-sided, TOS can still be defended if it’s clear and concise.
-Rip
do you think Linden will get this into a TIME mag article?
The EULAs have long been one sided for the company. I really wouldn’t mind a court smashing it back down to something a bit more fair and have long advocated such things. The whole ‘we can do anything we want and you can do nothing, own nothing and have no voice unless it amuses us’ is long overdue to be crushed. It will have trouble being ported over to the other MMOs but I could see it coming up if someone was to sue over a banned account.
What’ll make it really tough is that one of the reasons that the court gave was basically, “there’s no other product like Second Life.” Right now, if you want to own your stuff, etc., SL is the only place to go.
WoW, on the other hand, is just another fantasy diku. Don’t like WoW’s TOS? Go play LoTRO. Or DAOC or EQ/EQ2, etc.
I’m a bit shocked that the Linden folks didn’t utilize the business realities exception. Had they done that, they may have avoided losing that motion.
Either way, the case has a long way to go, I’m excited to see what happens.
Raph asks:
“when you ban a bug exploiter, do you refund their cash?”
Well, we do. I work in the entertainment industry. We provide a place for people to talk. If they misbehave we remove them from the system, sometimes permanently.
If we do that, we refund their money for their last purchase.
It’s a lot better than trying to face the legal ramifications of – I bought time on your system and now you are preventing me from using that time which I paid for.
I don’t know how this plays out legally, but it seems to me that a one sided TOS for an entertainment game that costs $15 a month and provides nothing but entertainment (at least officially) is categorically different from applying the same standards when there are thousands of dollars at issue.
This guy is a creep who engaged in hacking their site and Linden should have every right to do what they did. But what about someone who violates TOS for gambling or offensive behavior. Does Linden really have the right to just confiscate a $3000 sim without any appeal?
Entering URL in your browser’s location bar is not hacking.