Well, there's been a lot of talk about Marc Bragg and his lawsuit against Linden Lab. Urizenus Sklar, editor emeritus of the Second Life Herald had an excellent interview with Jason Archinaco, Bragg's attorney in this matter. I'll be referring to that, but really, if you're interested in this topic, you should go read it.

Marc Bragg, you may know, found a way to fool the system into letting him bid on property that was not available for auction in the usual way. With nobody to bid against him, he scored quite some amount of land for very little money, and then resold it. His account was banned and his Second Life assets dissolved, as Linden Lab considered this a violation of the Terms of Service -- an exploit.

Jason A. Archinaco, Esquire himself is a partner in the Commercial Litigation group of White & Williams, LLP. An avid gamer, he is also a technology law specialist, and wrote this very pertinent and interesting paper on the topic of virtual property. Having read it, I get the impression that Archinaco is very keen to see some of his ideas tried out in a court of law. However, having read both the paper and the interview -- even though I'm no lawyer or legal professional -- a number of other things seem to be going on here.
Archinaco says, "So, at the heart of this lawsuit is whether or not Linden and Rosedale's representations about virtual land ownership are true, or whether they are simply lying to induce people into handing over their money."

Well, that's a bit bald. Its a classic black-or-white piece of chest-beating, like you might see on one of those colorful wrestling shows on TV these days. It is a craftsman-like piece of work, though, in essence boiling down to "Our opponent is either perfectly correct in these select statements, which moves the area of law to one we are more confident in, or they are lying bags of manure, which strengthens our case." -- Overall not a bad piece of work, really, but really rather cliche. Still, it shows Archinaco to be bluff and confident that he can make a good showing either way.

Prokofy Neva described the incident like this: It's like finding an electronics item in the store that was mistakenly priced at $1.00 instead of $1000, going and paying for it at the cash-register becaue[sic] the bar code seems to match, but then being stopped at the door by the guard who looks at the item, and the sales receipt, and says "hey, this doesn't add up".

I think it would fairer (following this simile) to suggest that you slipped your own price sticker and barcode on a thousand dollar product, and bought it for one dollar, through one of those fancy automated checkouts they have these days. Nobody to challenge you, until the store starts looking for its missing products, and checks the checkout transaction history.
Archinaco takes a bold stance by playing the devil's advocate -- assuming that Linden Lab is correct, and that his client is a vile sinner, he asks "does that mean that it would somehow be ok if Mr. Rosedale and Linden are not being honest when they tell people you own land you buy in Second Life? No. Would it mean that Linden could confiscate Mr. Bragg's property, resell it to the highest bidder and keep the money for themselves? No. Not even the United States Goverment gets away with that."

Well, actually, the United States Government does get away with exactly that. Isn't that what they do when the taxes aren't paid on a property? The property is confiscated, sold to the highest bidder, and the government keeps the proceeds. Here, we're rather talking about an invalid sale. To continue his metaphor, a sale at the Government's expense due to a quirk in the way paperwork is filed. Does fooling the United States Government into releasing land to you make you a legitimate owner? Not normally. One wonders why Linden Lab has not filed a counter-suit for material damages, after all those simulators cost quite a bit of money and cannot reasonably be reclaimed from their present owners who bought them from Marc Bragg in good faith.

Here's where we get to the telling part. "I certainly can't wait to cross-examine Mr. Rosedale about his belief about the ToS and ask him whether the statements he has repeatedly being[sic] making to the public about land ownership are true or not. I think a lot of people would like to know Linden's position, under oath, as opposed to statements in the media."

This seems to strongly suggest that Archinaco would love one of two outcomes. If it were anyone else, I'd read this as a ploy to push Linden Lab into an out-of-court settlement, by promising showboating and grandstanding cross-examination. Win or lose for Linden Lab, that wouldn't be an attractive option. However, this is Archinaco, and I think he genuinely wants to have his name against a precedent here. This is his special interest area. Something he loves. Something I think he wants to make a name for himself in. He's got a passion, and we all understand that kind of passion.

As Archinaco himself has pointed out in his paper, the only really relevant case thus far resolved in a way that does not really support his position (Davidson & Associates v. Internet Gateway; EULA wins), and he seemed a little disappointed about that -- that it could have and should have gone that extra step. I think, as a responsible representative for his client, he would be satisfied with an adequate out-of-court settlement from Linden Lab. As a passionate man, and a thinker on virtual property, I think he wants this one to go to trial, win or lose -- possibly winning a partial summary judgement on the matter of the real value of virtual property, even if the case is lost.

Archinaco's one for a little reckless polymorphism, though and while I like that over drinks, it isn't the sort of thing that's likely to endear him to a savvy judge under every circumstance. "I like to ask the "Walmart smell test", i.e., if Walmart was doing "this", what would the reaction from the public or Congress be?"

That's a piece of morphism that goes too far. What if Walmart had troops in Iraq? What would the reaction from the public or Congress be?

See? The smell test has a bit of an odor all its own.

Lastly, "While I am cautiously optimistic about this case from a legal standpoint, win or lose, I think this case is bringing to light issues like those you have raised in this interview. And, that is necessarily a good thing."

You know, I think I just spent this whole article saying almost that myself, and it may well be that Archinaco is the man to do it. But I don't think this case has his number on it. I think that taking this case is going to get him eaten up like Brent Hatch in Utah.

You can be assured that we'll be watching the progress of this case very closely.