Emerald: unfortunate developments

I’ve supported Emerald. I’ve been happy to use it for around 18 months. In that time a lot has been made about it being a malicious viewer, with many, many claims going around that it does everything from raiding your L$ balance to spying on your granny while she’s having a bath…and they all remain pretty unsubstantiated. Emerald has also come in for more than its share of people misrepresenting its capabilities (such as making your avatar “invisible” allows you to run around griefing people. If you’ve ever used the “invisible” function, you’ll appreciate how ludicrous these claims are).

However, there comes a time when one is forced to sit up and take notice of what is being said – and that time is when it is being said by one of the Emerald developers.

LordGregGreg Back is not someone I classify as an SL friend or even an acquaintance. Our dealings have always been at a distance, via IMs usually. BUT…throughout the time I’ve been using Emerald, I’ve never found him to be anything less than honest in his dealings with people. It has been because of his involvement (alongside that of Chalice Yao) that I’ve remained an Emerald user. Yes, both at times have had to do *some* verbal acrobatics when being pushed to defend the antics of others, and in doing so have potentially harmed their standing in the eyes of others. But just because they have, does not, and has not meant their efforts and work with regards to Emerald have been anything less than honest.

So when Greg up and publishes his own misgivings about Emerald, I admit I sit up and take notice.

The crux of the matter is the manner in which a .dll is being used – in this case emkdu.dll – which is related to texture loading and which allowed a viewer’s title bar and executable path to be broadcast in an obfuscated manner (and possibly recorded by other in-world devices). Despite promises the issue had been fixed, made to both Greg and Emerald support manager, Jessica Lyon, it wasn’t. Instead, encryption was used to further obfuscate what was going on, and further requests for the code to be cleaned up only increased the degree of encryption being applied.

The worrying this here is that the encryption meant that the code could not longer be properly vetted and verified – Greg’s role in the Emerald team. This, as Greg explains, undermines trust. Encryption  / obfuscation is suggestive of malign intent, whether or not it is in fact the case. So why do it? Probably because the individual responsible cannot help but jerk an immature middle finger at his detractors at the thought of them scrabbling around trying to prove the code is in fact malicious, then giggling himself to sleep at night.

But in doing so, the individual concerned pretty much jabs a finger vertically at the rest of the Emerald team with the result that those with a conscience feel they have no option but to gradually bow out. And this is a shame, as it lessens the value of Emerald while simultaneously enabling a further round of accusations and drama.

More than this, it leads to an undermining of faith in Emerald as held by existing users. After all, one developer is actively seeking to mask what the code is doing from his fellow developer and placing active barriers in the way of ensuring the code is properly verified as “clean” – so why on Earth should any of us continue to trust and use Emerald?

SLCC: Pip’s vision – good, bad, possibly ugly?

Note: Updated Sunday 15th August, after re-watching the  recorded video stream without rl interruptions!

Philip Rosedale has just given a presentation at SLCC, and its is causing a very mixed reaction.  The following represents snippets – I missed portions of the stream due to RL issues, and will potentially expand once the whole thing is reposted somewhere for more relaxed viewing.

Highlights of the take were:

  • Script limits are still very much on the books, along with other methods of helping improve the overall in-world experience for users
  • General latency issues (failures in group chat; rough region crossings, teleport latency, etc.), are going to be improved substantially be the year-end
  • The start-up process (Viewer loading, downloading information from the servers, etc.) is going to be improved (speeded up) possibly by a factor of 2
  • The new user experience is going to be radically overhauled (as outlined in his meeting with BK)
  • General tasks are going to be made a lot easier – such as simply walking / sitting or even opening a box and wearing / using the content
  • Looking towards “standardising” the Viewer code base and also towards shorter, more iterative release cycles & automatic updates for the Viewer
  • A confirmation that Mesh *is* going to ship, although the process of introduction will be slowed down – which potentially a public beta by year-end
  • The ability for users to pick their first name and their last name and the ability to edit the display name (e.g. rather than using a group title)
  • The closure / merging of the teen grid with the Main grid.

These are all valid points, and addressing many of them will clearly be welcome to the vast majority of SL users. However, there are a couple there do require a closer examination.

The first of these is the commentary on the Teen grid. This has already caused considerable feedback on the official forum and elsewhere, and many have expressed surprise at the move. Why this should be, I’m not sure; Philip has made no secret of his desire to have the Teen and Main grids “merged” – even going so far as to state in a Metanomics broadcast back in January 2009 that he could see it happening “down the road”.  Back then, he said:

Generally, I think that the future of Second Life needs to be one where people of all ages can use Second Life together, and that’s the direction that we’re taking in our planning and our work. I think that the educational opportunities for Second Life are so great for all ages that we need to make it as available as we possibly can to people….But, if you look at the problems with having a teenage area, which is itself so isolated from the rest of the World, they’re substantial. There’s an inability for educators to easily interact with people in there because we’ve made it an exclusively teen only area. Parents can’t join their kids in Second Life so problems like that are ones that we think are pretty fundamental and need to be fixed. We need to stop creating isolated areas that are age specific and, instead, look at how we can make the overall experience appropriately safe and controlled for everybody. So that’s the general direction that we’re taking there.”

Furthermore, the changes are pretty much in keeping with the idea of “bringing down the walls” of Second Life, if not exactly in the manner Philip initially indicated when introducing the concept.

What will happen here is that ten grid will effectively close for anyone under 16, while 16 and 17 year-olds will be “moved” to the Main grid.

Philip hints at the reasons for doing this are educational and economic – both increasing the user-base and providing a means for younger users to enjoy the full capabilities of Second Life, while offering improved educational capabilities in line with removing the “isolation” elements. While these are not views necessarily shared by educators at present – as indicated by comments made during the Q&A session – Philip’s sincerity on the matter seems genuine; even if – and I have to be brutally honest – it carried the traditional Linden Lab edge of, “We hear you, but we’re doing it anyway, our way.”

On a personal level, I have mixed feelings about this; despite the more noble aim of  Philip’s statements around this move, it is not without risk.

Leaving aside the entire shift in legal onus and potential repercussions of an adult actually being unwittingly caught in flagrante delicto with a minor,  there are a number of other concerns that spring to mind.

Firstly, and despite his assertions that minors can be safely ring-fenced within Second Life through mechanisms such as Age Verification, the matter becomes one of perception more than fact. There are more than enough people outside of SL who are ever-eager to throw sticks, stones and whatever else they can find at SL / LL (step forward, Mark Kirk, salacious tabloid hacks, et al). Perceptions go a long way in the media. So even if the above-mentioned scenario never comes to pass, and no matter how robust age verification and ring fencing may appear to be (and are the verification systems LL employ really that robust?) – there is a strong risk here that innuendo, suspicion, inaccurate tales of under-age sex and other salacious reporting could do both LL and SL a lot of harm as things get mixed.

A second area of concern with the “move” of 16 and 17 year-olds into the main grid is what happens to the content they hold in their inventory. As Teen Grid users such as Ishy Wingtips have posted about in the forums, the Teen Grid, due to the lack of full-scale commerce, is rife with ripped content – including content from the Main grid. Is this content also to be transferred? Will filters be applied? In fairness, Philip does comment indirectly on this point and indicates it needs addressing – but the concern remains, particularly given LL’s track record of addressing “issues” in the past.

While not wishing to portray all young people as content rippers, there is a further concern here: ripping, as Ishy and others have indicated, appears to not only be endemic in the Teen Grid, but pretty much a modus operandi for many; it’s an accepted norm. Obviously, this is in part due to the “lack” of specific content on the Teen Grid. But, given it is something of an accepted norm, there is a risk that the arrival of younger players into the Main grid might lead to a renewed round of content ripping; that those entering the Main grid (assuming they are not already doing so “illegally”) will be the proverbial kids in a candy store.

Equally worrying, even if the above doesn’t happen, is the perception among content creators that it is – leading to another rise in the paranoia that surrounds the issue of content ripping which in turn leads to a rise in the use of the more edge-case “anti content theft” tools within Second Life. The net result being the Grid becomes somewhat more unpleasant for people of all ages as suspicion becomes the norm and people find themselves getting kicked from stores, etc., simply because their avatar looks like a teen.

In fairness, this latter point goes beyond content creators: while teen player will allegedly be ring-fenced to PG / G sims, one can still, sadly, still picture those *resembling* teens (i.e. with “below the SL average” height) being subjected to suspicion and questioning in clubs and elsewhere.

The other point of Philip’s presentation especially worthy of comment (given I skipped it following his in-world Roadshow last month) is the idea of making SL more fun by having new users being able to sign-up and effectively teleport directly to the things they want to experience. In this case he highlighted someone with an interest in live music being able to sign-up, click and link and go to a music venue.

Again, this is both a laudable aim and a potential minefield – as Philip acknowledged. It is also not something that is precisely new – Mark Kingdon alluded to the same idea back in 2009; the major difference being, he seemed to hint that the process would be far more siloed in effect than Philip is proposing.

The worry is of course, the process by which destinations / venues are selected for inclusion in this process; if it is not handled very carefully and with a lot of forethought, it could be seen as damaging to smaller venues / destinations / businesses if the larger (/louder) players are seen to be benefiting unilaterally as a result. Certainly, it runs the risk of further FICs forming / benefiting (or being perceived to have formed / benefited).

It was very good to hear Philip’s commentary on Mesh; with all that is going on around Second life in terms of emerging “competition” and rich, deep content, Mesh is something that SL will need if it is to maintain its position. But in that, it is pretty much a double-edged sword in terms of its impact  – it can simultaneously make Second Life a richer environment, have a beneficial impact on elements such as lag and latency, etc., and Philip points out – but it also runs the risk of revolutionising the content creation process so much  that many creators find themselves pushed to one side or out of business. Thus, to hear that the impact of Mesh is being considered carefully, and that the rush to introduce it has been somewhat slowed (public beta now slated for “around” year-end), is very welcome.

The comments around shorter, more iterative release cycles for both Viewer and server code were interesting. I’m not a technologist, but it has always seemed to me that making smaller, more contained changes to something like the server code, then building progressively on such changes is more logical than developing a release for a specific purpose – and then throwing as much as possible into it as well. Certainly, to my own way of thinking, the recent spate of server releases that have rolled out and back more frequently than Brighton sees a changing tide tends to support this.

It is going to be around the Viewer that there could well be further howling down the road. Philip raises a very valid point: one of the issues we all face in SL is that there are several flavours of Viewer out there, all handling things differently, and all operating from different code bases. If the Second Life experience is to be one that people can readily identify with one to another, there is a case to suggest things need to be unified in some way so that Viewers grow from a single code base.

The issues here are going to be precisely *what* constitutes this code base and how controls are going to be applied to it to ensure it remains manageable, controlled and verified as being “right” for the Grid; how Linden Lab continues to engage with TPV developers; and how much freedom they will have in terms of developing their own Viewers. Could this actually mean the end of all support for 1.23.5, internal and TPV? Again, while the sentiments appear logical, the potential for upset appears vast.

During the Q&A Prokofy Neva raised the issue of Search – something that is the cause of much angst within Second Life and which was absent from the presentation. Philip was quick to point out the reason for the latter is that he is still trying himself to understand all of the issues, before admitting that the matter is complicated – especially given various factors such as LL currently using two search tools, issues around establishing reliable measures that will help them more properly manipulate things like relevance in a search for the benefit of all. This again caused a mixed reaction on a personal level.

On the one hand, Philip’s openness and honesty was good to hear – the frank admission that there isn’t an answer to all the issues at present. While his comments around the number of people working on search compared to “six months or a year ago” were a tad disingenuous – while there were issues with search 6-12 months ago, they are nothing like the chaos people are experiencing now, so this measure of headcount isn’t entirely relevant in that respect – it was nevertheless good to hear that LL appreciate this is a major issue for residents and businesses alike and are trying to get things under control.

Overall, there was much that appears good in Philip’s presentation, and it is good to hear him couch matters in terms of issues that do massively hit people rather than in matters that could be said to be somewhat more “trivial”.  The assurances given around certain activities – providing they are followed-through – are equally good to hear. As to the more controversial elements, such as the teen issue, there are concerns that, on paper, make this appear to be potentially a “bad” move and may need to some ugliness. But that said, as we’ve seen time and time again, Second Life users and both resilient and adaptive – frequently in spite of LL’s efforts / activities.

Getting Imprudent

imprudenceI started using Imprudence when I first started learning about building. If memory serves, back then it was ostensibly under the Electronic Sheep Company banner.

One of the things like liked about Imprudence even then was the more logical approach that was being taken towards functions and activities: build tools were better organised, etc. One of the things I was less keen on was the fact that for an age, nothing happened with Imprudence – something that eventually caused me to wander away from it.

That latter factor is itself fading into memory: while there were concerns over Imprudence’s slow revival due to Linden Lab’s Third Party Viewer Policy – the Imprudence team even announcing they were pulling out of SL. Fortunately, this never happened as, on the one side, Linden Lab actually demonstrated they were capable of listening to people, and so modified their stance somewhat; while on the other cooler heads prevailed in Imprudence’s thinking.

Since then, the Viewer has been in a steady state of development, with releases coming along on a (by-and-large) weekly basis – and it has now reached Release Candidate status. As I’ve mentioned Imprudence before, I thought that given it is now at RC, it would be worth a closer look.

For those who don’t want to make the jump to Viewer 2.x, there is much to recommend Imprudence, including:

  • It is built on Viewer 1.23.5 code
  • It can be installed itself, without the need to install the “official” 1.23.5 Viewer first and then install over it
  • It offers revised and improved menus
  • It incorporates many functions and options from popular TPVs such as Emerald (without the associated Drama people like to create around Emerald)
  • It is Restrained Love enabled – great for both D/s and non-D/s activities
  • It can be used across OS Grids, and includes excellent additional features for this.

Popular Features

Features-wise, Imprudence offers a lot.  I personally like:

  • Rationalised / improved pie menus
  • Viewer-side AO. Modelled on the Emerald system, this provides access to essential AOs- walks, sits, flies, etc., directly through the Viewer without relying on a HUD. While not as slick or comprehensive as something like HUDdles, it’s nevertheless a very good tool to have
  • Viewer-side “Radar” (or more correctly, Avatar List)
  • Area object search
  • Windlight toolbar
  • Vertical IM tabs
  • Temporary texture uploads
  • Inventory quick filter
  • Double-click Teleport capability
  • Teleport button included in IM windows (via a neat drop-down menu)
  • Autoresponses
  • Mu* poses and auto OOC closures.

Beyond this, Imprudence offers increasing support for Viewer 2 functionality such as Alpha Masks, tattoo layers, and so on.

Less Controversy, the same Fun!

In including “Emerald” features, Imprudence avoids the more controversial functions and additions – some of which, it has to be said, are a trifle intrusive in the former. In the some cases Imprudence actually improves on such functions.

Take the Avatar list / “radar”. Rather than having it open in a dedicated window, Imprudence combines it with the Mini-map, presenting the list as a drop-down from the latter. Clicking on a small button in the lower left corner of the Mini-map slides out the Avatar list; click it again and the list slides away.

As with the original Meerkat Avatar list first ported to Emerald, Imprudence offers a series of action buttons which can be used when a name on the list is highlighted – such as offering a Tp, initiating an IM conversation, etc., which stopping short of the so-called data-scraping activities such as grabbing an avatar’s key with a single click.

Mini-map/Avatar List (names blanked here to protect privacy)

If you have Estate Rights, the list now additionally includes a tab allowing you to access a set of Estate tools.

The Mini-map itself also includes the zoom feature that made its way from Meerkat to Emerald – and adds a couple of extra options.

However, there are a couple of issues I found personally annoying / frustrating with the mini-map zoom and the Avatar list.

The zoom options seem nowhere near as smooth as Emerald’s (at least for those of us without a mouse wheel  – I use a trackball), with both ZOOM CLOSE and ZOOM MEDIUM being a tad over-done, even with the Mini-map window resized. MEDIUM doesn’t appear to “reset” the mini-map as it does with Emerald, and this makes seeing things on the map a tad annoying unless one reverts to tinkering with debug settings.

Also, and speaking from an estate manager’s PoV, the limitation of 512m for detecting avatars is a trifle limiting. While I can understand why it has been limited – to help retain people’s privacy – I nevertheless miss the ability to rapidly locate an Avatar on-sim in times of mischief, particularly when they could be standing anywhere between ground level and 4096m above the ground.

Turning to the Friends / Contacts list, Imprudence avoids adding additional columns to the Friends / Contacts list, preferring to keep it clean and simple and in line with the official Viewer – which is to their credit; the additional columns can be a source for Drama.

The Viewer-side AO is pretty much as found in Emerald, and functions smoothly and efficiently, although I understand there were a few bumps with earlier releases. It took my existing AO card (used with Emerald) and activated immediately, as one would expect.

Area Search (credit: Imprudence Team)

The Imprudence team have been very wise in including the Area Object Search. As builders and Estate Managers who have used it will testify, this is a real boon when a prim / object zooms off to heaven knows where due to a careless co-ordinate input.

Pies and Menus

One of the major improvements (for me) in Imprudence is the overhauling of the pie menus. Not only have options be rationalised and re-ordered, they’ve been laid out in such a way that makes adapting to them and finding things pretty straightforward  – and infinitely less painful than getting to grips with the original Viewer 2.0, to be honest.

There are a few niggles – I miss CREATE when standing on a prim. As I build in the sky, this is particularly annoying, as right-clicking and selecting CREATE from a pie menu is a lot faster than opening the Build menu whether by clicking a button or using a hotkey combo. LL made this mistake in Viewer 2.0 and ultimately revised their decision – I hope the Imprudence team do as well.

Of course, not everyone likes change. Using the pie menus gets very ingrained over the years to the point where any change, no matter how small, causes irritation – which is again why the Imprudence team have been sensible and included an option in PREFERENCES to use the “legacy” pie menu system found in the official Viewer.

It is because SL users seem so resistance to change that Imprudence’s other menu changes – re-organising the drop-down menus, moving some options from Preferences to menu, etc., might bring them under fire from some users. Habits get ingrained, and unlike the pie menus, these options cannot be “switched back” to the “old” layouts / locations. I have to admit, I’ve had a couple of “argh!” moments myself looking for options that “aren’t where they should be”.

But, once one takes the time to get used to the changes, one cannot help but accept that for the most part, they do make sense. Whether it be simply moving the position of a menu option within the menu itself, or moving a function / option / check item to an different menu, the changes are logical and result in a smoother use of the browser.

An example of this is the positioning of the option to enable / disable Restrained Love functionality. Traditionally in TPVs, this has been located somewhere in PREFERENCES. Within Imprudence, however, it is located in the ADVANCED menu – a move that makes it far easier to access, although admittedly one has to remember to activate the Advanced menu first (CTRL-ALT-D on PCs) in order to find the option.

Those used to Emerald may also have a few problems finding things – the Advanced Build options, for example, have been moved from a tab in PREFERENCES -> EMERALD to being activated via a button on the BUILD pop-up itself. Again, this is entirely logical – and actually preferable; but that doesn’t unfortunately mean there will not be further grumble when people option to switch or “give Imprudence a go”.

Profiles

Another area of update is the Profile window. Some of the changes are very subtle and smile-inducing. The “2nd Life” tab is now “Avatar”, while the “1st Life” becomes “Real Life”.

Profile “Avatar” Tab (Groups blanked)

The biggest changes to Profile, however, are in the “Avatar” tab, which has had a complete make-over. The About and Groups windows have been reduced & swapped in their positions in the tab relative to one another, while the various buttons from the bottom of the tab have been moved alongside the Profile picture, and logically grouped.

In a nod to those concerned about key-scraping, the Avatar key is not displayed a-la Emerald, but there is still a button that allows the key to be copied to a computer’s clipboard. It will be interesting how many angst-ridden and accusatory posts are written about the “wrongness” of this feature should Imprudence gain in popularity.

Overall, the new Avatar tab layout is very logical and helps the information it presents “flow” more easily from screen to eye to brain. Even so, it risks getting some criticism in that many put time and effort into laying-out their About windows (as I have to a small degree) – and the reduced width of the window means this careful formatting is lost when a Profile is viewed in Imprudence, and any Profile formatted to the Imprudence About window will look odd in other 1.23.5 Viewers. However, this really is a minor niggle: people face the same problems when viewing  / creating Viewer 2.x Profiles.

Other Grids

Imprudence is very useful if you spend time on other grids. It is configured to work directly with the most popular OS Grids (as evidenced by the fact you can pick your primary grid from an additional pop-up the first time Imprudence is run after installation), and I’ve used it on a couple of European-based grids with no problems. Indeed, it now rivals Meerkat as my Viewer of choice for my OSGrid wanderings, and will likely become my defacto standard soon enough.

Imprudence includes options that make using it on OSGrids a joy. It includes Lightshare, for example, which allows regions on Grids that support it to broadcast Windlight settings to the Viewer, bringing a more SL-like look to the environment.

Summary

Imprudence has come a long way over the past few months, and the team deserve credit and congratulations on all they’ve achieved: not only in bringing in some of the most popular features from other TPVs, but also in steering clear of the more controversial elements, and gearing Imprudence towards supporting the more popular Viewer 2 options as well.

There is still much to be done, as the RC status of the Viewer indicates – but this is again to the team’s credit, demonstrating a willingness to develop and enhance in stages, take balanced steps and work towards a good, solid Viewer that deserves to have a popular uptake. Given the way things have been hurried and hashed with regards to Viewer 2, it is a lesson LL would do well to learn.

There are a few things I’d personally like to see – a spelling checker, for example (given I spend a fair amount of time writing and editing Notecards – and cutting / pasting between SL and a text editor for “quick” changes gets tiresome). I’d also like more in the way of skin options – however you look at them the “traditional” blue and silver skins are looking increasingly dated. But again, these are minor points; and given that only a few weeks ago I was lamenting the lack of a double-click Tp capability and lack of support for Mu* poses and auto OOC closure – and all of these are now present in Imprudence, I think it safe to say concerns on skins and things will be dealt with in the future.

As it stands, and even while still RC, Imprudence is worthy of consideration for those still dissatisfied with Viewer 2, and who a) don’t want to be saddled with the angst surrounding Emerald and b) don’t want to have to install the “official” 1.23.5 and then have to install additional files, but would rather do everything from a single installer.

ADDENDUM

Widdles. In being little-Miss-Blogaminute, I forgot two things:

  • If you’re a voice user, you may have to copy the relevant files across from your existing 1.23.5 folder
  • If you are confused about where everything is in Imprudence, look here.

Evans et al: file and counter-file

On July 10th, lawyers representing Linden Research and Philip Rosedale filed a Motion to Dismiss in the ongoing case filed on behalf of Carl Evans et al. Rather than deal with the specific claims made by the plaintiffs relating to the “sale” of virtual land, the Motion focuses on why the case should not be heard in the forum of the District Court of Eastern Pennsylvania. In doing so, the lay observer cannot help but wonder if Linden Research haven’t managed to play somewhat into Archinaco’s hands on the matter.

The Linden Research Motion to Dismiss hinges on four points:

  • Of the four named plantiffs, only one – Evans himself – has any connection to the District  in which the papers have been filed, and it is therefore an inappropriate venue
  • The plaintiffs have accused Linden Research of breaking a number of Californian state laws, therefore the more appropriate venue to hear the case is in California, wherein the Defendants reside
  • Evans has, on many, many, occasions not only fully accepted Linden Research’s Terms of Service (which includes matters of arbitrary and legal recourse), he has done so on many occasions using multiple accounts
  • The the plaintiffs have wrongly asserted prior point of law, vis Judge Robreno’s holdings in the matter of Bragg versus Linden Research.

Of these, the first claim has some merit in part: with two of the plaintiffs residing in Florida, why not file there? Obviously, there is a degree of  game play in force here: in 2007, during the Bragg vs. Linden Lab case, Robreno issued holdings that are broadly sympathetic towards the Plaintiffs. As such, Jason Archinaco, the Plaintiffs Counsel, has played towards getting the case heard in the same Court where Robreno resides – if not before Robreno himself.

Archinaco’s rebuttal of this point (which can be found here, as a ZIP file containing an amended original filing), would appear somewhat weak, suggesting that while Evans is *currently* the only plaintiff residing in the Court’s jurisdiction, discovery *may* reveal “hundreds or even thousands” of other Plaintiffs within the same District. However, this would appear to be the only weakness in his overall rebuttal.

LL’s argument for Dismissal on the basis of the Plaintiffs citing LL to have broken a number of Californian State laws would appear to be very shaky.  While the Motion reflects a similar – and successful – argument put forth by the Linden Research legal Counsel during the Bragg case in 2007, the situation today is somewhat different:

  • In the Bragg case, papers for the Plaintiff were initially filed at State level (West Chester, Penn). However, as they referenced Californian laws, LL  successfully argued that the case should be removed to Federal jurisdiction. The case was duly moved to the United States District Court for Eastern Pennsylvania – a Federal Court, where it came before Judge Eduardo Robreno.
  • In this case, the papers have been filed directly at Federal level, with the same Court Linden Research found acceptable when hearing the Bragg case in 2007. As such, there could be an argument to say that if the Court was good enough for them in 2007, it should be good enough for them now.

The last two reasons in LL’s Motion are altogether more boggling to the lay mind because both sides use almost the same arguments, with the logic reversed, as to why the case should / should not be dismissed.

LL point out, Evans et al not only signed up to the ToS Robreno originally cited as unconscionable, they signed-up to later versions of the ToS that were substantially revised after the Bragg episode, once their original accounts had been suspended. Therefore, it might be argued that a) the changes made to the ToS invalidate the Plaintiff’s reliance on the Bragg holdings b) the Plaintiffs knew full well what they were signing-up to in setting up new accounts to access Second Life.

However, as Jason Archinaco, on behalf of the Plaintiffs responds, while the ToS has changed over the years since Bragg, much of the language which Robreno found unconscionable at the time, remains very much in evidence in the ToS. He further implies that the ToS remains a Contract of Adhesion because one simply has no choice by to agree to its unilateral nature in order to use Second Life.

Things get even more confusing to the lay eye as both sides also use the fact that Carl Evans (who is individually singled-out in the LL team’s Motion in what appears to be – as Archinaco points out – nothing less than an attempt to undermine his personal credibility), has, over time, created no fewer than 72 accounts for use in Second Life. LL use this as evidence that Evans (and the others) willingly accepted the ToS over an extended period of time; Archinaco arguing that by their own admission, Linden Lab were forcing the Plaintiffs to adhere to a ToS previously found to be unconscionable and void…

Beyond this, both sides also produce impressive evidence relating to Forum Selection Clauses in contracts (the clause that gives LL the “right” to declare that those entering into dispute with LL must travel to California) which muddy the water even further.

At the end of the day, the filing of a Motion to Dismiss and the counter-filing of papers in rebuttal is generally an accepted step in legal cases. As such, there is little in the overall proceedings per se that is unusual here. What is of interest, however, is that in turning the matter away from the issues of virtual land ownership and towards the question of jurisprudence, Linden Lab have trod the same path as they did in Bragg. The difference here is that this is possibly that they have done precisely what Archinaco had hoped they would.

In their own Motion, the Lab’s legal team has brought the entire subject of the fairness or otherwise of the ToS and matters relating to Forum Selection Criteria, arbitration, and the unilateral nature of both of the latter, very much into sharper focus; this alone may yet come back and bite them rather rudely down the road.  Assuming things aren’t yet settled elsewhere, in another echo of Bragg.