A Virtual Common Law

This Blog Post explores the legal framework which ought to govern virtual worlds and their populations. The exploration of this issue will span both the real world and virtual worlds. First, the origin of virtual worlds will be introduced.  Next, three legal frameworks will be identified; terms of service/end user license agreements (TOS/EULAs), legislation, and the common law. I argue that the common law is best suited to develop a legal framework to govern virtual worlds.

Additionally, we will explore the evolution of the common law governing virtual worlds with an examination of the TOS and case law surrounding Second Life, a popular virtual world. In particular, we’ll look at disputes between virtual world service providers and virtual world resident users. Finally, an exercise will illustrate the implications of user created content within virtual worlds.

First, let us briefly explore the origins of the concept of virtual worlds. Though the definition is fluid, Duranske defines “virtual worlds” from a legal perspective as: [FN 1]

  • computer based simulated environments
  • designed to be populated by “avatars”
  • allowing for communication between users
  • often offering persistence of user created content, and
  • often offering functional economies

                               
Arguably, virtual worlds were conceptually born in art. Early visions of virtual worlds are established in William Gibson’s Nueromancer and Neal Stephenson’s Snow Crash. [FN 2] William Gibson, who invented the word “Cyberspace”, is often credited for his contributions to the conceptual development of virtual worlds. Furthermore, Neal Stephenson’s Snow Crash popularized the term “avatar.” The novel’s hero (Hiro Protagonist) is a pizza delivery man in the real world, but his avatar is a powerful samuari swordsman and hacker in a virtual world called the Metaverse.

The introduction of “virtual worlds” as a concept aid us in exploring the legal issues to follow. Clearly, there are many who anticipate possibilities within virtual worlds which are not yet technologically possibility. Therefore, the influence that artistic/conceptual developers have on the evolution of virtual worlds is worth noting.

The legal framework governing virtual worlds is not yet established. Efforts to shape the foundation of this body of law are of major debate. A fundamental question concerns which law ought to govern virtual worlds. [FN 3] Generally, 3 approaches are focused on; terms of service and end user license agreements (TOS/EULA’s), the legislature, and the common law.

Under TOS/EULA’s, the virtual world service providers and virtual world resident users contractually agree to the laws which will govern each virtual world. Arguably, utopian environments and relationships may be explored in this model without “real world” or government interference. A major weakness of TOS/EULA’s, however, is the unequal bargaining position between virtual world service providers and virtual world resident users. TOS/EULA’s are often offered on a “take it or leave it” basis with a mouse-click replacing a signature of agreement. This type of agreement is also known as a “contract of adhesion.” [FN 4] Specific provisions of TOS/EULA’s as well as case law concerning the issue will be discussed below.

Some argue that legislation ought to govern virtual worlds. Edward Castronova suggests that legislation should govern virtual worlds to ensure that the “Magic Circle” of play is not broken by intrusion of real world interference [FN 5]. More broadly, advocates of a legislation based system echo a Roman Civil Law structure of codes to regulate virtual worlds. A weakness of this model is that legislation may not be able to predict technological developments and the evolution of virtual worlds.

A third model to govern virtual worlds is the common law. In this model, the courts will hear disputes as they arise and apply existing common law, which will unfold to embrace virtual worlds as new precedents are established. The common law is a set of principles drawn from the fountain of justice [FN 6], a natural law with a mystical purpose which may be digitized and carried forward into virtual world jurisprudence. The strength of this model is that “courts can use basic common law principles to provide online communities with private property, dignitary and personal protections, and freedom of speech that communities need to thrive.” [FN 7] Duranske notes that this approach seems to be the “most likely outcome” at least in the short term. [FN 8]  I argue that the evolving common law is the law that ought to govern virtual worlds.

Next, we will explore the evolution of common law governing virtual worlds with an examination of TOS/EULA’s and case law surrounding Second Life. Disputes between virtual world service providers and virtual world resident users stand at the entrance to any virtual world.

Second Life’s TOS [FN 9] are a contract of adhesion which users must accept on a “take it or leave it” basis. In exchange for acceptance of the TOS, however, Second Life resident users enjoy several valuable licenses. The very first TOS provision illustrates the superior bargaining position of Linden Labs, the Second Life service provider. Linden Labs reserves the right to materially change the agreement, provided 30 days notice to the user. [FN 10]  Linden labs may providing notice of the change using several means, and the means may be of Linden labs choosing. Notice from the user, however, shall only be faxed or mailed to Linden labs. [FN 11] Continued use by the user acts as functional consent to the change.

Two valuable considerations obtained through agreement with Second Life’s TOS are the limited license to acquire “virtual land” [FN 12] and the right to retain “any and all intellectual property rights in content you submit to the service.” [FN 13] Rights such as these lay a foundation through which Second Life resident users may engage in business activity for profit and exchange Linden Dollars for US dollars. [FN 14] An example of virtual world business activity is the creation of Machinima films which Second Life resident users are licensed to use non-exclusive and royalty-free, given certain conditions. [FN 15] Filmmakers can make movies with Second Life and distribute them commercially. This activity would grant Linden Labs certain licenses to use the content “solely for the purposes of providing and promoting” Second Life. [FN 16]

The courts have provided interesting guidance on the resolution of disputes between Second Life resident users and Linden Labs. It is worth noting that Second Life has apparently responded to these cases by amending its TOS. The focus of the two cases at issue is the process of dispute resolution itself, illustrating the development of a common law framework to govern virtual worlds.

In Bragg v. Linden Research [FN 17], the U.S. District Court of Pennsylvania found a mandatory arbitration clause in Second Life’s TOS unconscionable, and denied the defendant’s motion to compel arbitration. At issue was the enforceability of a mandatory arbitration clause in Second Life’s TOS. The plaintiff claimed the cost of the arbitration was prohibitive for him to pursue relief. Prohibitive costs included the requirement that the arbitration occur in San Fransico and that it would be decided by a 3 judge panel requiring payment. [FN 18] The court agreed, finding the arbitration clause procedurally and substantively unconscionable. In particular, Judge Robreno found the confidentiality provisions in an arbitration agreement substantively unconscionable:

[I]f the company succeeds in imposing a gag order on arbitration proceedings, it places itself in a far superior legal posture by ensuring that none of its potential opponents have access to precedent while, at the same time, the company accumulates a wealth of knowledge on how to negotiate the terms of its own unilaterally crafted contract. [FN 19]

The Federal District Court is guiding disputes towards a common law legal framework that will unfold to embrace Virtual worlds.

The same court continues to lay a roadmap in Evans, et al. v Linden Research. [FN 20] Though Bragg eventually settled [FN 21] Linden changed its TOS to include a forum selection clause, requiring plaintiffs to bring suit in the Northern District of California if they do not activate the optional arbitration. Though finding some level of procedural unconscionability in the forum selection clause, the court upheld the TOS. The Judge found the TOS forum selection clause reasonable, “given that Linden is located in California and that California law is in many ways a consumer-friendly forum.” [FN 22] In addition, the court noted that the optional arbitration clause is also reasonable given that it no longer requires appearance in San Fransisco nor requires a 3 judge panel. Here again, Judge Robreno guides the dispute towards a common law legal framework. The process has created public precedent, and has allowed Linden to develop TOS which grow to embrace reasonable dispute resolution procedures.

Finally, a brief exercise will illustrate the implications of user created content within virtual worlds.  Having explored disputes between virtual world service providers and virtual world resident users, let go deeper. Crossing the threshold of TOS and leaving disputes with virtual world service providers behind, how will the legal framework governing virtual worlds respond to in-world activity? Ayn Rand’s novel, Anthem, will be a tool to raise this question. [FN 23]

Anthem is a story set in a dystopian future where individuality has been suppressed to the extreme. The main character Equality 7-2521 escapes from this oppressive society and discovers independence. Anthem’s copyright has expired in the US and is in the public domain, but it is still under copyright protection in many countries internationally.

A virtual world resident user who physically resides in the US decides to make a derivative work of Anthem and distribute it commercially. Following the applicable TOS Snapshot and Machinima policy, the virtual world resident user makes a film adaptation of Anthem and sells copies of it within the virtual world. Can virtual world resident users who reside in countries where Anthem is copyright protected purchase copies of this film? Can they attend a movie screening within the virtual world in which they pay with virtual currency to view the film? Would a label which reads “for viewing by US residents only” be valid protection against international claims of infringement? These are some issues I would like to explore in further posts and research.

[FN 1]    Benjamin Duranske, Virtual Law: Navigating the Legal Landscape of Virtual Worlds 2 (1st ed., ABA 2008).

[FN 2]  These authors are prominent science fiction writers who have explored Virtual Worlds, but are not the first to do so.

[FN 3] See Duranske at 23.

[FN 4] See Id. at 27.

[FN 5] See Id. at 26.

[FN 6] See William Blackstone, Commentaries on the Laws of England 34-36 (3d American ed. 1890).

[FN 7] Duranske at 25 (qouting Joshua Fairfield, “Anti-Social Contracts: The Contractual Governance of Online Communities,” Washington & Lee Legal Studies Paper No. 2007-20 (July 2007)).

[FN 8] Id.

[FN 9] TOS effective Dec 15 2010. http://secondlife.com/corporate/tos.php.

[FN 10] Second Life Terms of Service, section 1.

[FN 11] Second Life Terms of Service, section 13.4.

[FN12] Second Life Terms of Service, section 6.

[FN 13] Second Life Terms of Service, section 7.

[FN 14] Second Life Terms of Service, section 5. “Linden Dollars” are “Virtual Tokens” which “constitute a limited license permission to use features of (Second Life).”

[FN 15] See Second Life Terms of Service, section 7.4. See also Second Life Snapshot and Machinima Policy, http://wiki.secondlife.com/wiki/Linden_Lab_Official:Snapshot_and_machinima_policy.

[FN 16] Second Life Terms of Service, paragraph 7.2.

[FN 17] Bragg v. Linden Research, Inc. and Philip Rosedale, 487 F.Supp.2d 593 (2007).

[FN 18] Id. At 609-10.

[FN 19] Id. At 610.

[FN 20] Evans, et al. v. Linden Research, Inc., 487 F.Supp.2d 735 (2011).

[FN 21] See Duranske at 29.

[FN 22] Evans v. Linden Research at 741 fn6.

[FN 23]  Though the Digital Millenium Copyright Act and other authorities may affect these issue, this exercise will keep within a “closed universe” of assigned materials already discussed in this Blog Post. This is for the purpose of merely intoducing legal issues . 

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~ by gabrielcyberlaw on September 4, 2011.

9 Responses to “A Virtual Common Law”

  1. Until this course, I had only briefly heard of World of Warcraft, Second Life, and the other assortment of online virtual worlds. When I was growing up, MMORPG games grew in popularity, but even after I heard a TV commercial advertising all that you could do in Second Life, I was nervous about exploring further. Two weeks into this course, I have an avatar created and dressed conservatively (although I did experiment with having my avatar don a tiger outfit), have attempted to fly and teleport, and have taken evidence from a crime scene (I still hope they didn’t need it). But, I can safely say I am still nervous about venturing “in-world”. You can never be absolutely certain to whom you’re speaking, there’s always a possibility you’re being stalked the moment you go “in-world”, and if you begin a business relationship in-world or engage in real-estate sales, there’s a possibility you’re being defrauded and scammed out of real-world US dollars.

    During the first day of class, we were advised on class protocol and “in-world” professionalism, but let loose to explore the site, whether it was venturing to a G-rated shopping mall full of objects, clothes, and accessories costing 0$ in Lindens or to a more adult-friendly island full of dominatrix orgy-loving avatars. Personally, the latter is not my cup of tea, but the fact that this world exists for users to frolic within–and do–intimidates me as the average, naive user of Second Life. You rarely have an idea with whom you are interacting while “in world”; you can read examples of prominent attorneys, judges, accountants, politicians, business executives, etc. that go “in world” to lead an entirely different lifestyle. Durankse highlights one attorney in particular (Ch.2) who works as a dancer and stripper by night and runs her “adult” nightclub when not dancing. I’m not a judgmental person, but there are questions I would ask about the ability to just switch off an “in-world” persona to resume a real-world lifestyle.

    This concern is obviously one that legislatures battle with, at least in part, when attempting to determine the most effective way to govern Second Life and other virtual online realities. Gabriel brings up a good point when discussing the three approaches to governing virtual worlds. but personally, I have to suggest a combination of TOS/EULA’s and common law as the best method. As I hinted at in the preceding paragraph, there is quite a split between real-world and in-world behavior, dialog, activities, etc. Therefore, it becomes easier to see that a dilemma exists whether to apply real-world law to govern in-world activities, or create and entirely different set of laws applicable only to in-world behavior. I can see how we could apply some of our law to those engaging in similar “in world” activities made criminal in real life (ie. fraudulently buying property at a severely discounted rate). But, how can we apply statues and ordinances to behaviors like “caging” and “griefing”, activities completely foreign and non-existent in the real-world? Based on Second Life’s Community Standards, it is intolerable to engage in the “Big Six”, but is a resulting suspension or expulsion really enough? Some of the crimes committed in-world result in real-world character defamation, psychological disorders, and/or a loss of thousands (or more) of real US dollars!

    There are many finite details (several pages of them) of the TOS/EULA that it’s doubtful that the majority of people even take two minutes to read (or skim) them. I admit, I did not. But just because you don’t read Second Life’s contractual terms of service does not mean you aren’t held to their standards–you waive a right to protest by selecting the “Accept” box whether or not you know what you are “accepting”. There is little to no bargaining power between the user and the service provider, but thousands of people have blindly agreed. Some of the TOS include language governing arbitration, choice of law language, and forum selection clauses–concepts without a legal background the layperson would probably skim over without understanding. Adding to the deceitful maneuvers/practices of larger virtual world companies, the unequal bargaining power between users and creators, as well as the problems I listed above about the problems of applying real-world law to in-world crimes, this is where I see common law taking hold. The courts will hear disputes as they arise and apply existing common law. As new precedents are established, they will envelop the virtual world and provide a legal framework. Many of the crimes in-world have relatively similar real-world equivalents and for those uniquely in-world crimes, the courts can decide a common law application and punishment best suited for the crime.

    As a final note, I’d like to briefly attempt to address the hypothetical questions posed by Gabriel. My personal thought would be that virtual world users in those countries where Anthem is copyrighted could purchase the derivative film but it would just be at their own risk. Every day people illegally download and share music and plagiarize written works all copyrighted here in the United States. It could be said these are derivative works when tech-savvy individuals are able to easily adapt their copy in a way that is just slightly different from the original. If this virtual user makes a film adaptation and users buy or go and view it in countries where Anthem is copyright protected, the situation is no different from those individuals in the United States illegally sharing (P2P, bit torrent) and downloading music right now.

  2. In response to the statements made about TOS and EULAs being “take it or leave it”, I must say that I have never once “left it.” I have clicked “I agree” countless times and have not read a single provision of a single agreement in my 15+ years of installing software. That being said, I have never once felt my rights were infringed upon, and the only thing I have knowingly done to violate any agreement is download music that may or may not have belonged to me. I do think it’s a sham for companies like Limewire to tell its users not to share files illegally, only to provide the perfect platform for doing so.

    I think the arguments made for use of a common law system are interesting, as well. A virtual court system would be a great, albeit laborious, way to govern Second Life. I can see it now, _____, Attorney at Virtual Law. Maybe I’m just too practical, but my ideal virtual world mirrors the real world in many ways. I don’t really see the point in reinventing myself as a punk-rock tiger with purple hair, but maybe too many people treat Second Life as a lawless society (barring actions that will get someone banned) for virtual lawyers to even have a place. Maybe one day 10% of my caseload will be online, rather than dealing with online entities in person.

    On a final, and somewhat unrelated note, I can’t help but think of the South Park episode based around the iPad in which Kyle unknowingly agrees to iTunes’ TOS/EULA and is subsequently bound by Apple’s policies. While completely inappropriate for class, I think this issue is touched upon in a way that successfully parodies the way people behave when installing software – mindlessly and unconditionally accepting the terms. For those who have not seen it and are interested, it can be seen at http://www.southparkstudios.com/guide/episodes/s15e01-humancentipad, but be forewarned of its graphic content!

  3. First off, great job with the virtual report, very impressive.

    I was sad to see that the Bragg case ended up settling. I wanted to see where the Court would come down on the bigger picture of taking the User’s account and content. I wonder if that will be a problem with letting the common law alone dictate the law on this matter. When so many cases settle, will the common law be quick enough to keep up with the evolving technology or will every court continually be faced with cases of first impression where there is uncertainty on all sides? I don’t think politicians know enough about the medium to be creating laws, but maybe if experts on the subject advised them of some of the possible issues, there would at least be a good baseline.

    I also find myself somewhat siding with the “big guys” when it comes to unequal bargaining power. Of course Linden Labs was not being fair in the Bragg case. They shut down his account and forced him to engage in overly expensive arbitration to try and get his account, inventory and money back. This was ridiculous and the TOS should have been found unconscionable. That being said, I am ok with Linden Labs having some degree of unequal bargaining power. Yes, the user content is not their property, but without Second Life, the user’s content is meaningless and could not have been created to begin with. Every user needs Second Life and therefore, I feel Linden Labs should have more bargaining power. As long as they are not overtly abusing their power (as they were in Bragg), they should be able to construct the rules to their world as they see fit because it is their world. I also don’t buy the fact that the arbitration clause was hidden in the TOS. Nobody reads a TOS and whether Linden Labs had it in a general section or under its own-labeled section, nobody still would have read it. If someone is thorough enough to actually read a TOS, then they would find it wherever it is.

  4. I agree that given the three options you present (TOS-Contract Law, Legislation, Common Law), the common law will best be suited to deal with emerging legal issues in the virtual world. Terms of Service agreements will always reflect unequal bargaining positions, and the fact that no one reads them. Legislation seems too slow to deal with the dynamic changes taking place in virtual realms. How many in Congress would understand the ramifications of such legislation? On the other hand, Congress has done a pretty good job of responding to technological changes of the last decades. Consider the changes in the Federal Rules of Civil Procedure designed to take account of the way we use and store electronic information today. Perhaps legislation could play a (supporting?) role in regulating and settling disputes that arise in a virtual context. I’m assuming her that legislation means Federal legislation, due to the inherently corss-state-line nature of virtual worlds. Am I wrong? Would you look to the States to legislate here?

    The ability of the common law to adapt to and settle the dynamic legal issues of the virtual world seems like the natural answer. I wonder then, what would become of our friends in all those civil law countries?

  5. Virtual worlds, and the subsequent legal issues that accompany them, are an issue of first impression in my life. I have never gamed or been interactive with other users online, with the exception of Facebook. I truly did not know that interaction of this magnitude existed online. Though I would not consider myself “tech savvy” by any stretch of the imagination, I am certainly more technologically capable and knowledgeable than both of my parents, and the partners and paralegals at my law firm. It is this lack of knowledge about the virtual world that worries me the most in terms of creating and enforcing laws to govern the virtual world.

    To really understand the virtual world, you have to be in it. No amount of reading material can substitute the learning that comes from creating an avatar and teleporting to different stores, buying virtual goods and property, and interacting with people virtually. How many judges or legislators have avatars? How many prosecutors or criminal defense attorneys understand what it is like to be caged by a random stranger in Second Life? While there are certainly civil attorneys who focus their practice on issues of this kind, is the criminal law system ready to begin handling virtual criminal law issues?

    So, as we are in this discussion about the best source for regulation of virtual worlds, I believe that it has to be a combination of all three – TOS/EULAs, legislation, and common law – just as it is in the real world. I think that TOS/EULAs must begin the process, because the people drafting such agreements presumably have the most knowledge about what actually happens “in-world” and what can potentially happen in-world. It is from this expertise that the common law system will then have to begin handling individual issues as they arise. As the Bragg case illustrates, this process of common law shaping the governing body of law will take time. It might first start with civil issues, but eventually criminal litigation will begin in virtual worlds. As trends in common law development begin to emerge and a “big picture” is created as to the landscape of virtual law, then I believe that the legislator will step in to codify common law. One of the biggest issues that I believe the legal community will face in dealing with virtual law is the speed at which issues will change and emerge. As new content is created daily, new potential legal issues arise at the same rate, and it will therefore require a faster response by the legal community.

    Another point that I am very interested in seeing what happens is whether “in world” litigation issues will be handled “in world” or in the real world. Will virtual-law lawyers begin hanging virtual shingles and attending virtual court hearings and mediations? Is that the most efficient way to handle virtual law issues? Or, does the anonymity of a virtual law community hinder the legal justice system and prevent justice from being done? In terms of criminal and constitutional issues, is the confrontation clause satisfied by virtual confrontation? I believe this a legal issue that will require knowledgeable advocates and a lot of learning by those will help shape the virtual law.

  6. Certainly, it is unsettling that a game developer has the power to materially change the terms of service as it feels the need. However, users have the ability to profit off of a video game – by selling their virtual items, using videos they make for marketing purposes, and exchanging Linden dollars for real US dollars. While the user has submitted to playing by Linden’s rules, which may be changed on a whim, the user is receiving significant benefits for his or her submission – either in the form of real money or entertainment. It seems that the courts are sufficiently monitoring the terms of service that developers impose on users, such as striking mandatory arbitration clauses. Litigation has also influenced Linden to modify its forum selection clause. Online gaming is a relatively new industry. Therefore, right now, I agree that the common law is the best way to handle this evolving gaming industry. In the future, legislation designed to regulate terms of service for online gaming would be useful as it would provide a legal framework for developers, users, and courts. Like Professor said in class, it may be useful for the United States legislatures to study how other countries, namely South Korea, have handled this growing industry.

  7. I have always wrestled with the questions of whether Second Life and other virtual worlds exist as a place cut off from the real world or in conjunction with real world activities. I am sure arguments can be made on both sides; however, depending on which side you are on determines which laws should govern virtual worlds. To elaborate, if there is no connection between virtual worlds and the real world, EULAs, TOS and any other sanctioned in-world laws should be the only governing laws for virtual worlds. However, if the real world and the virtual world co-exist in a symbiotic relationship, then as proposed by Gabriel, then some combination of common law, legislation and EULAs/TOS should govern virtual spaces.
    EULAs and TOS alone do not suffice as a sufficient deterrence to the virtual lawbreaker. These agreements only allow for suspension or termination of one’s avatar. For some this may be the end of the world (or at least the end of their virtual world☺), but for other users, it is only a bump in the road and within a few minutes the terminated user will be back in the virtual world under a different user name. This kind of behavior is prohibited by the EULA/TOS, but out of the millions of virtual world users, does a virtual world owners really have the time or resources to confirm that a terminated player has not re-registered as another user? The answer is probably not and that is the risk the terminated user is banking on. There is no other deterrent in the EULA for a virtual lawbreaker. EULA and TOS mention litigation, but only the virtual user is likely to request arbitration or litigation, depending on the amount in controversy. However, litigation does not deter the virtual lawbreaker from breaking any rules, it’s only two purposes is to give the virtual user a forum to complain and allows EULAs/TOS to look less one-sided.
    Common law and legislation, however, allow for impartial third parties to create laws to govern the behavior of both the users and the owners of these virtual worlds. The downside is that most judges, juries and attorney are not familiar with all of the aspects and nuances of virtual worlds which makes them ill-equipped to make, enforce or interpret virtual laws. Further, precedent set and laws made only apply to the U.S. This may not be a problem for U.S. citizens or EULA and TOS with choice of law and forum selection clauses naming the U.S. as the legal forum, but this may be unconscionable to citizens of other countries with substantial wealth in a virtual world.
    One last point, although, the question posed is what types of law should govern virtual world, the enforcement of these laws should also be a topic of much concern. Virtual world users are anonymous and locating a virtual user outside of the virtual world may not be cost effective or possible.
    In response to Gabriel’s hypothetical, it depends. It depends on if one views a virtual world as existing on its own or a world with a symbiotic relationship with the real world. Gabriel appears to be leaning toward virtual worlds being an extension of the real world. If that is the case, as Ashley mentioned, the user who purchases the Anthem-based derivative work, could be held accountable for any violations of their countries copyright laws. However, if virtual laws exist in their own bubble, the derivative-based work would not effect the copyright protection of Anthem in other countries in which copyright protection is still valid. The third and final option, the most plausible and practiced, EULAs/TOS agreements and real world laws work simultaneously to govern the virtual world.

  8. From a social contract perspective, the legislature should be best suited at determining how to deal with issues faced in virtual worlds. What the legislature is enacting as law should be a manifestation of the people’s will. However, it is too slow to adapt because of the political process implied in the passing of each law and common law best fills these voids. A great example of adapting to legal issues faced with the advent of technology is in the realm of electronic discovery. Courts have quickly adapted to develop a legal framework that for the most part has been successful. Much of the governing precedent is merely a year or two old; it does a great job at being realistic in its application and successful in carrying out its purpose. Common law also provides the best avenue of approach because it allows judges to deal with all the variables that haven’t been thought of and resolve the issues as consistent as possible. If companies are able to follow precedents properly it will only strengthen the legitimacy of their worlds and increase profits when user confidence rises.

  9. “I can’t believe my account was suspended! I didn’t do anything!” I don’t think that the average person actually fully understands that when they hastily click “agree” when attempting to access websites or software, they are actually entering into and are subsequently bound by real-world, enforceable contracts, regardless of whether they actually read them or not. In a way, these terms are similar to the “fine print” that you find in many contracts that people enter into regularly, such as the lease you signed before you moved into your apartment. So, claiming ignorance as to the terms is not an affirmative defense regarding whether someone violated the TOS; however, I do think that, as a public policy matter, courts should be even more strict when it comes to deciding whether to uphold an online Terms of Service provision in the face of potential unconscionability given that most people sign these contracts so haphazardly.

    With regard to the Second Life TOS, the one provision that I have the most problems with is Section 1 and Section 13.4, which essentially say that SecondLife can change the TOS at any point any may use any number of methods of notifying users and that such changes will take effect 30 days after the change. However, users are forced to use one of two methods. The issue I have with Linden Labs being able to use any one of numerous methods is that they have too many options. How many users actually check the Second Life website on a regular basis? In my opinion, I think Linden Labs, as the party to the agreement who is actually changing the terms, should give notice to multiple locations to ensure that the users are aware of such changes, especially if such change is basic to the contract. I feel the changes should be send to the users’ emails, be placed on the Second Life viewer when signing in, AND put on the website!

    Finally, there was one more Second Life provision that struck me — 2.1, the age requirements provision, which states as follows:

    “By accepting this Agreement in connection with an Account, you represent that you are at least 13 years of age and you have the legal authority to enter into this Agreement. If you are at least 13 years of age and less than 18 years of age, you represent that (i) your parent or legal guardian has consented to your having an Account in Second Life, participating in the Service, and providing your personal information in connection with the Service; and (ii) your parent or legal guardian has read and accepted this Agreement on your behalf. If you are under 13 years of age, then please do not use Second Life. There are lots of other great virtual world services for you. Talk to your parents about which services are appropriate for you.”

    Frankly, I am not sure that anyone under the age of 18 actually has the legal authority to enter into any contract, regardless of their representations. Further, it is amazing to me that there is not an outright prohibition on users who are under the age of 13. Instead, Linden Labs simply says “please do not use Second Life.” So, going by the very terms of the contract, if you are under the age of 13, you are still allowed to use Second Life, although Linden Labs would prefer that you didn’t. The issue with this is that there are not any provisions re: users under 13 needing (i) their parent’s consent to having an account, and (ii) their parent’s acceptance of these terms. So, it seems to me that users under 13 have a way to get out of any obligations they may have under these TOS if their parents did not consent to the account or accept the terms, especially if the age of consent for contracts is 18.

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