Continuing our walkthrough of the Bragg vs Linden Lab filings, we arrive at the 16th of January, 2007. Bragg made two filings on this day, backed up with assorted exhibits.

This one is Bragg's Opposition to Linden Lab's Motion to Compel Arbitration. You'd better get some tea and a sweet biscuit.

Bragg begins by summarizing his complaint, but with some novel flourishes. Specifically, that (while he has already averred to the court that he agreed to the Terms of Service) the Terms of Service were not again presented to him at any time during the auction process, nor was it referred to in the emails that he received from the automated auction system, and that the purchase does constitute a legally binding contract (however, he previously says that it does form a legally binding contract for Linden Lab, but now says that it does not bind him).

Question -- does ignorance of the specifics of an agreement you have made (however it may have been represented to you) make it any less binding? Of course not. Well, actually there are some circumstances where it may be less binding, void, voidable or unenforceable, but wilful ignorance of the specifics is not one of those.

He further suggests that the Terms of Service cannot apply to anything they do not mention, and they don't mention land auctions. Actually the whole tone starts to get a little whiney at this point, I'm afraid.

I don't know if Bragg intends to attack the validity of the Terms of Service of all MMOs at this point, but that's essentially what he does: "The design of the [Terms of Service] and its arbitration and venue provisions clearly are intended to cause a complete subversion and substantive denial of consumer to exercise their lawfully protected rights under the several consumer protection statutes in each of the separate states of the United States of America."

The thrust of the argument here seems to be that Linden Lab gets to choose under what law and venue the contract is interpreted, and Bragg doesn't, and he's saying that it's not fair, and that he should be able to reinterpret it somewhere more favorable to him, and less favorable to them.

Take a few moments to imagine that a resident in a country with no copyright laws to speak of gets a satellite TV subscription, and burns it all to DVD and sells it. The company cuts off his service for misuse, and he sues them for unlawful termination, based on the fact that since his country has no applicable copyright laws that he has not performed any misuse.

Most contracts and agreements contain two specific clauses. A choice of law clause and a choice of forum clause.

A choice of law clause determines what law the agreement will be interpreted under. Perhaps some jurisdictions exist where an agreement is not considered binding unless you consented to it while standing on one leg, with your name stained on your skin with the extract of striped Buulala leaves. Obviously, it makes sense to specify whose laws will govern the agreement. Here's what Linden Lab's Terms of Service has as its choice of law clause:

"[S]uch rights and obligations shall be governed by and construed under the laws of the State of California, including its Uniform Commercial Code, without reference to conflict of laws principles."

Just after that, there's a choice of forum clause. A choice of forum clause is designed to limit forum shopping (wandering around looking for a forum for your dispute that gives you more advantages or damages than your opponent) and forum non conveniens (picking a forum that is just plain expensive or impossible for the other party to conveniently represent themselves in):

"Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by binding arbitration in San Francisco, California under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief or enforcement of this arbitration provision without breach of this arbitration provision."

Whew. Here's what Bragg's objecting to. He doesn't want this to go to arbitration, in California -- or anywhere else. He's had the chance for arbitration and turned it down.

Bragg's doing a bit of a tail spin right now. He's claiming that the arbitration in the terms of service is prohibitively expensive, yet he's rejected cheaper arbitration options that were available to him in the course of proceeding with both his original complaint and his newer, expanded complaint.

Further (on the matter of forum shopping and forum non conveniens), Bragg could easily have pursued this in a California Court ... ah, but Pennsylvania has the treble-damages statute -- if he wins any damages, he gets treble the amount that the jury awards, you see (even though the extra under the treble damages statute are taxable income), and it's just not a terribly convenient jurisdiction for Linden Lab - however, it's not quite inconvenient enough to object to on those grounds. Either California or Pennsylvania makes a valid first-instance-forum, being convenient to one side or the other, and not 'oppressive' or 'vexatious'.

Then we go around the binding agreements route again. On page 4, Bragg calls the Linden Lab Terms of Service "unconscionable as a matter of law and therefore unenforceable", yet on pages 9-11 he calls the following items contracts: "The bidding page, the winning bid confirmation page, email confirmation, and the payment page concluding the purchase and sales transaction." Bragg says that because they do not contain the Terms of Service, that he is not bound by it in these matters, as a binding contract, but that they form a binding contract on Linden Lab. A judge is just going to start shaking his head sadly at that point.

He goes on to argue that he was not required to agree to the Terms of Service at each logon and seeks to undermine it's general applicability to the service on those grounds.

Whew. We're only halfway through this one, and there's a bunch of exhibits attached. We'll have more for you on this one tomorrow.