So you may have heard of Bragg vs. Linden Lab.
If you haven't, the summary:
1. Bragg tried to be a land baron in SL.
2. Bragg exploited the auction system and bought sims that were not up for auction yet at $1 a piece, when going rate is $2000US and up.
3. Linden Lab kicked out Bragg and confiscated all of his L$ and land holdings in SL.
4. Bragg is a lawyer, so he decided to sue.
And the court summary:
1. Bragg claimed he was entitled to the sims he bought for $1. That has subsequently been dropped.
2. Bragg is allowed to sue from his state, rather than in California as Linden Lab's Terms of Service insisted.
3. Philip Rosedale, CEO of Linden Lab, unsuccessfully requested to be left out of the defendant list.
Bragg's basic claim is False Advertising. He claims Linden Lab has stated that land is "own"able, and that the land and L$ confiscated when he hacked Linden Lab's auction system should be his.
Now Bragg appears to be trying to subpoena all the big players in Linden Lab and behind Linden Lab.
It should be patently obvious that Bragg doesn't care about winning or losing this case. Sure, he's looking for money, but this guy sees a market. He's a lawyer, and if he can continue the publicity circus, he could very well go down as "The man who first tested virtual property rights." and secure his place as an "expert" in virtual property law. Thus, the celebrity list he's asking to subpoena acts as a way to boost publicity.
Hindsight being 20/20, Linden Lab should have paid this guy off once they realized he was a lawyer with nothing better to do than make himself a star. If Linden Lab is forced to dole out tort money, and then to have to treat all of its land as other peoples' property - that'd be a huge setback.
For us consumers, it might be a benefit. But honestly, the government is so far behind making adequate legislation for technology, especially in the Internet, that I think any ultimate decision may wind up being totally unenforceable or just plain messed up.
My Opinion
Honestly, Bragg doesn't have a chance at winning the lawsuit. He violated the law in hacking the system, and Linden Lab did what any good ISP has done: permanently kicked him off the system. If I were to hack my ISP, I would expect them to do the same thing, regardless of what value of my website or any customers to my website.
But that's moot. Bragg's a long-term thinker, here. If he loses round 1 at the local judiciary level, then he appeals, and guess what? More publicity.
My advice
Linden Lab should / should have filed a criminal complaint against Bragg for hacking, and press to get him debarred. He's a criminal for his hacking, and criminals shouldn't be able to be lawyers in court. Bragg either knew what he was doing with manipulating the auction system was a crime, or he's a complete idiot. His lawsuit and positioning himself as a virtual law expert clearly shows he's not an idiot. I have to conclude he's a conscious criminal, and to him I hope he suffers for the rest of his life knowing that he's a sleazy, unethical, criminal.
I did a bit of poking around. An article about Bragg said he was in Pennsylvania, so I checked, and found Bragg had no disciplinary record findable on the Internet.
I was, however, able to easily find PA's code of conduct shows that disciplinary action can be taken on lawyers that:
8.4
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
in the comments it notes:
"a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice."
And it would seem plainly obvious that if someone hacked / exploited a website for attempted personal gain, then it is absolutely relevant to the law practice as Bragg is representing himself in an Internet law case.
So, Linden Lab, why not? This guy's a criminal. Have at him. Even if you don't get him to lose his license, it may be enough to remove him from representing himself at his case, and that would be a blow to his overall goal of being a virtual world legal expert.
7/15/2007
Bragg vs. Linden Lab: Bragg Wins Either Way
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18 comments:
Thank you for a simple break down of this mess that can be easily understood by the masses. I agree 100% with your opinion, your advice and summation of him looking to make himself a star.
I'm not sure how Bragg is a criminal. What "hacking" did he do? All I know is that he took advantage of a flaw in LL's website, but there was no firewall or login that he hacked. Hacking usually means you get to a point where you get a message that warns you you are using some restricted resource and yet you go through anyway. I am pretty sure there wasn't anything like that in Bragg's case.
Bragg only acquired the land in a way that was just not the way LL intended it. I am no lawyer, but I think that merely not respecting LL's implicit intent does not qualify as unlawful or criminal. Not even as "dishonesty, fraud, deceit or misrepresentation". Sleaze maybe, but Bragg IS a lawyer, right?
If you drop a $100 note on the ground and someone picks it before you come back searching for it, he is not a thief even it was not your intent to leave the note there for him and even if he had to look under a rock to find the note. More of a realistic example, I think it's not a crime to check public phones for returned tokens. Is it?
Lem, thanks for your comments, they illustrate some of the basic F.A.Q. most people have with this case.
1. "What 'hacking' did he do?
A: Brute-force URL trying. If you recall, last year Harvard de-accepted students for doing the same thing to find out if they had acceptance letters online.
http://www.computerworld.com/securitytopics/security/hacking/story/0,10801,100261,00.html
"Hacking" isn't some magical firewall breaking technique or software. Most of "Hacking" is guessing passwords, scanning IP ports, and trying websites that aren't supposed to be user-visible.
Further incriminating Bragg is the fact that he filed lawsuit the very next day after having his auctions revoked, giving Linden Lab no time whatsoever to take any actions or make efforts to contact him. Bragg opted to forego out-of-court resolution when he immediately filed suit. Linden Lab had to freeze his account to avoid obstruction of justice.
The legal definition of criminal hacking:
http://www.rent-a-hacker.com/hacklaw.htm
"(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains--"
"(C) information from any protected computer if the conduct involved an interstate or foreign communication;"
-OR-
"(7) with intent to extort from any person, firm, association, educational institution, financial institution, government entity, or other legal entity, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to cause damage to a protected computer;"
Either definition could work.
Bragg is a criminal.
2. "Bragg only acquired the land in a way that was just not the way LL intended it."
So, if I go rob your house, and steal all of your stuff, would that just be "obtaining your stuff in a way you didn't intend it"? Your argument is pure spin. Bragg, as a lawyer, had a heightened responsibility to be ethical, and he knew damn well that $1 sims whose date of auction had not started yet clearly is an exploit.
3. "If you drop a $100 note on the ground ... " Then it is out of your possession. Bragg went *into* Second Life's auctions servers and took the land auctions for $1 from Linden Lab's possession. Sorry, but Linden Lab's "$100 bill" was in their pocket, and Bragg found that "oops, the pocket was loose".
Bragg. Criminal.
lol. you're an idiot. this entire commentary committed a crime against my eyes. this pretty much sums up everything, particularly your inability to even get the most fundamental of facts correct "Linden Lab no time whatsoever to take any actions or make efforts to contact him". i ought to sue you for hacking my brain and uploading stupid thoughts.
...and oops, guess you forgot to disclaim that you generate income from second life and therefore have a financial interest in a positive outcome for linden lab's business in this case. not declaring conflicts of interest in your little commentary piece..tsk tsk that's..one might say ..unethical. hmm? hah. no wonder this guy is a lawyer and you're not. ah.. and no wonder you feel such a need to demonize him. just too bad you couldn't have done it with a bit more what's the word i'm looking for ...opposite of retardation.
Hey anonymous, if you feel so sure about that, why didn't you leave your name? Thanks for the mean-spirited comments, though; it assures me that more than my friendly colleagues are reading this blog. :)
Some replies:
1. "Linden Lab no time whatsoever to take any actions or make efforts to contact him"
I'm assuming you're referring to my previous comment. Okay, I'll post my source:
http://blog.secondlife.com/2007/06/29/linden-lab-files-response-to-complaint/#more-1060
quote: “Why didn’t Linden return Bragg’s money and the proceeds from the sale of his property when he was suspended?
Bragg filed suit the very day after his account was suspended due to the irregular auction activity in his account. At that point the parties were in a legal dispute. The court will decide what happens to the money and the proceeds.”
You can allege that Linden Lab is lying about this, but you can't claim that I don't have my facts straight.
2. "guess you forgot to disclaim".
You're clearly new here, that's fine. The entire blog is about how I work primarily with Second Life and about its technology. Consider that a disclaimer. When I promote my own products and clients, I do make sure I have a disclaimer, but since the whole blog's about Metaverse technologies, I'd need a disclaimer at the beginning of every blog post to do what you ask.
Besides, you picked up on the fact right away, and you're clearly not very intelligent, so I think the average person gets it and won't need a disclaimer. *grin*
3. "what's the word i'm looking for ...opposite of retardation"
Heh. Which word of that you want? "Opposite"? "Retardation"? "Of"?
Seriously, if you come into my blog and want to name-call, I can take it. However, I recommend speaking in complete sentences and presenting rationale, valid arguments.
So now I'm intrigued. What's your beef? It takes something special for someone to defend a litigator of a frivolous lawsuit based on that litigator's criminal actions. Are you a friend of Bragg, or do you just not like me? If the prior, please talk some sense into him. If the latter, come on, we can be friends. :)
Hiro, the Harvard candidates that were "de-accepted" were not sued and I doubt other universities rejected them for what they did either. So THEY are not criminals and then why does that example point out that Bragg is a criminal?
I don't see either one of the definitions that you give as matching what Bragg did. What is "authorized access" in this case? How was that "extortion" when he bought the land albeit at a ridiculously low price? If we two were members of a jury, we would be at most a hung jury, so Bragg would still be innocent. Not sure what the Supreme Court would decide in this case though. ;)
The land was available for sale on a public website, without any security. Not publishing a link to it does not make it a "locked house" nor a "loose pocket". There is no trespassing law for that like for a backyard even. It is public. The note was on the ground.
I don't like what Bragg did and I think that LL were entitled to kick him out (just the way Harvard rejected those students). I am uncertain though whether they were entitled to take also everything else he already owned in SL. And that is what Bragg is suing for. Whether LL or Bragg is going to win, I think that LL still acted irresponsibly. They are in a no man's land and they are making their own rules.
Lem:
re: Harvard
The de-accepted candidates were lambasted all over the media as hackers, and they did nearly exactly the same thing Bragg did. They weren't sued because Harvard had no reason to - kicking them out and humiliating them on a national level was apparently enough.
re: "authorized access".
If you leave a $100 bill on your front yard, it's still your $100 on your property. This is wholly different from leaving something in public space on a sidewalk - this is about data and systems owned by Linden Lab.
Not fencing in your yard is no reason to claim that anything on someone's property is fair game.
re: "what Bragg already owned".
Bragg owned the IP on his items in Second Life, nothing more. To go back to the ISP analogy, if I were to put up a website on an ISP, and then exploit their payment system, they have every right to delete my website. They can't steal my website and re-market it, certainly, that's copyright protected, but they have every right to delete data on their servers when someone breaches the contract for using said servers, especially if they breach the contract in a criminal way.
Had Bragg had not jumped to litigation, who knows what rationale, adult conversations could have been had between him and Linden Lab. But that's America for you - we're a hair-triggered litigation-happy bunch of people.
In addition - Harvard couldn't sue the "hacker" students because there is zero demonstrable damages. Litigation requires showing damages. Re-read the definition of hacking laws from that website - proving damages / seeing classified information / etc is a necessary requirement.
And regardless of how easy it was for Bragg to gain access to auctions that had not started, he clearly committed fraud in claiming he was entitled to them, despite that those auctions were clearly not started yet. Maybe not a hacker, but a fraudster.
Here's a cute story from just last month about "hacking":
http://security.blogs.techtarget.com/2007/06/15/use-cafe-wi-fi-face-a-felony-charge/
We can probably think of all kinds of analogies, like Bragg walking into the unlocked back office of the computer store and entering a sale in his name on the computer for $1. I think under UK law too, that what he did would constitute a hacking offence. But anyway, I expect between California, Pennsylvania and Federal US laws, there's something in there that decides if what he did was illegal or not.
My personal opinion is that the guy's a snake, and nothing will change that. I guess we'll see what the US law thinks.
The Harvard candidates weren't sued/charged because they did nothing wrong. The issue of manually entering of a URL to find unlinked content was recently examined by the California Attorney General, and found to be not illegal.
Last year, members of gubernatorial candidate Phil Angelides' staff found some controversial audio files on Gov. Schwarzenegger's servers. These files were found by chopping the end off a URL. The California Attorney General found that no crime had been committed, and advised Schwarzenegger administration staffers to tighten up the "overall security of their computer network."
Kinda like what happened with Bragg and the auctions.....
http://findarticles.com/p/articles/mi_qn4176/is_20070204/ai_n17199993
"The Harvard candidates weren't sued/charged because they did nothing wrong"
Just because something is illegal doesn't make it right or wrong.
"The issue of manually entering of a URL to find unlinked content was recently examined by the California Attorney General, and found to be not illegal."
That's good to know, actually.
Realize there's a key difference, however. After finding the not-yet-started auction page, and it should have been clear to any idiot that they weren't supposed to be there, he went ahead *multiple times* and bought the sims, knowing full well that date of auction was part of the agreement. This is fraud.
When Linden Lab didn't allow the auctions to go through, Bragg had a second opportunity to back away, but instead, he *IMMEDIATELY* pressed with lawsuit, claiming he was entitled to those sims. The rest is history.
Maybe "hacker" is too good of a word, I guess he's just a lame fraudster. But either way, the man ought to be banned from lawsuit stemming from his own criminal act.
I think it's a key distinction that Bragg didn't just access content on a web page, he completed a semi-automated financial transaction after doing so.
My hunch is, a UK judge would weigh the regular value of the product (US $1000 minimum on standard auction/sale) against claims of legitimate intent to buy at US $1. This based on various stories over the years, where judges have been pretty stern on people trying to claim goods at at obviously unrealistic, mistaken prices.
But this is not a UK case, and even then, there may be nuances that differentiate this from a typical case of an exploiter being caught out.
Yes...and the nuance is that Linden left a no-reserve auction live on a publicly-available web page and decided to flex their muscles when a user actually bid on that public auction.
Ah, and there's the crux of the argument Anon - Was that web page 'public' or not? If I wanted to protect a page of mine on the weblog, I will password-protect it. At least THEN I'm positive that someone illegally accessing that site is criminal activity.
Given the above note regarding CA, the courts may have precedent to allow the initial transaction to take place. Going that route could actually dodge the 'land ownership' bullet by focusing solely on the transaction itself.
The question then becomes whether LL can pull off that fraud was committed in the case, despite their own gross mistake on the pages (that started the whole damn thing!). The TOS is still under contention in this case, but not as much the land ownership can of worms.
Hiro, I'll bet a dinner at Malibu that this is how it'll twist.
Interesting blog, Hiro. I'm sort of surprised I haven't found it before because it looks like you write about legal issues in virtual worlds sometimes here, and that's what I write -- actually, that's all I write about -- on my blog as well. I'm an attorney who tracks this stuff pretty closely.
And that's actually why I'm posting here.
I appreciate what you're trying to do (make this lawsuit more understandable for people who aren't lawyers) but there are some pretty serious factual inaccuracies in your post that hurt its credibility.
First and foremost, the fact that supposedly supports your main argument -- that Bragg is representing himself -- is wrong. He isn't. He's represented by a lawyer out of Pittsburgh named Jason Archinaco.
There are number of other factual/legal issues here too. These are a few others that I think are important to keep clear for your readers:
1) I know what you meant here, but Bragg is actually not claiming "False Advertising." He's claiming fraud, breach of contract, "conversion" (which is basically civil theft), and bunch of other things, but not False Advertising, which is a pretty specific crime that is enforced by the Federal Trade Commission.
2) The recent decision you're talking about here wasn't actually that he can sue in his own state rather than in California, but that he didn't have to participate in "arbitration" proceedings in California as the TOS dictated. Arbitration is sort of like court, but it is a private system, and the participants have to pay for it. So Bragg's argument was that it was unfair to make Second Life citizens pay as much as $10,000 to a private group before they were able to sue Linden Lab -- for free -- in U.S. Courts. It's not a bad argument, because most claims against Linden Lab are going to be for less than $10,000, and it's arguably not fair to make people pay more than the case is worth just to get to bring the suit. The decision is also a fairly big deal, because the judge essentially said that the Terms of Service weren't fair (the legal word is "unconscionable") on this point and it's the first time a MMO world or game has had its TOS declared invalid for unconscionability.
3) You don't actually "subpoena" people who are employed by your opponent in a lawsuit, you just notice a deposition, and they have to show up under the Federal rules. You get to take 10 depositions in cases in Federal Court, unless the Judge lets you have more. A subpoena is a specific legal document that you serve on non-parties to make them show up for a deposition or give you documents.
4) This sentence: "the government is so far behind making adequate legislation for technology, especially in the Internet, that I think any ultimate decision may wind up being totally unenforceable or just plain messed up" just doesn't make any sense. Whatever the judge decides here isn't going to be unenforceable because of a lack of legislation. That's just not how it works. The judge will decide something here, one way of the other, under existing law, and there's no reason to expect it won't be enforceable.
5) Finally -- and this isn't a legal point -- just from a fairness perspective, don't you think saying, "I checked, and found Bragg had no disciplinary record findable on the Internet" is kind of cheap? You're saying you found nothing, so why say it, unless you're just trying to associate him with a disciplinary record he doesn't have?
Regarding your analysis, I actually think you make some pretty good points, and like I said, I think it's great that you're trying to make the case accessible to a broad readership. I just think it's important to get the facts and the law right too.
I'll keep visiting your blog because I think you've got some good things to say. If you have any questions about the legal side of anything you're thinking about writing on, feel free to shoot me a note.
Benjamin, thanks for the comments.
That's why you generally write about law, and I generally write about technology.
I do stand by my "unenforceable" comments - though I was more referring to the larger picture of whether a judge rules people can "own" virtual land or not, not just specifically the outcome of this lawsuit.
Thanks for your additions and corrections. I didn't realize Bragg wasn't representing himself - that I was basing off other blogs I've quoted. The False Advertising part of it is based on statements from commentary regarding Bragg complaining that Linden Lab has repeatedly marketed SL for "owning land" and such.
Folks: Go visit this guy's blog. He's clearly got the specifics down more than I could hope to. :)
Thanks for the plug, Hiro. Feel free to drop by my place and fix my tech mistakes. ;) I'll definitely be back here too.
This is an interesting blog. I myself am not firm in legal things, much less in those applicable in the US.
I would like to comment the technical side: I work a couple of years now in the IT industry, doing internet/intranet business applications for customer around the world. The exploit Mr. Braggs used is not really new and should be impossible in applications, which actually handle financial stuff. So in my eyes, LL did not do its homework in the first place.
My worries do not lie in the lawsuit, and if Braggs wins or loses. It lies in the following two facts:
1. LL did not secured its auction system. How secure are all their other financial applications? How would I react if this was not LL, but the Bank of America (BoA) or Paypal? If someone could get money out of there with just a deep-link attack? BoA is a financial institute with reputation and Paypal recently became one. LL does not have either a banking license (as far as I know), nor the reputation as financial institute. At least my trust in the LL's ability to secure financial applications diminished a lot.
2. What entitles LL to take away property in the first place at their "own discretion"? Are they lawyers? Are they some sort of country? Virtual worlds just recently crossed the fine line between entertainment and business. So entertainment rules do not apply anymore. What if tomorrow one SL user accuses the other of unfair advertising? What if the first one is a big customer of LL and threatens to leave? What if he is a big financial partner? Do they have again the right to ban the other customer at their "own discretion"? With plain ISPs it is very easy. They await legal decision of courts and then act upon them, as this is not their core competence.
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