Second, and related to that last point, I was surprised not to see more about the virtual property discussions in this order. The court is pretty transparently confused about the differences between copyright rights and virtual property rights — it even goes so far as to say Linden recognized property rights in virtual land, when in fact the ToS do exactly the opposite.

I wrote more about this on my blog. I’d be interested to hear your thoughts.

I love it that the TOS is declared “unconscionable” and that these games/worlds all got a little bit less oppressive and put on notice with that ruling.

I’m not loving it that a bad case might lead to a good law (never happens) — because it means that thugs who steal and fence hot sims and harass a virtual world company in court get to wrest something back from them that they only have due to that virtual world company. It means that virtual world companies, like OB/GYNs, will become hugely aware of malpractice suits and become more cautious and expensive.

What it boils down to, though, is that the court is saying that some pretty common elements of TOS agreements may be considered unfair by law

There are many contracts, not just software TOS and EULA, where one party decides to put in terms that are well known to be prohibited under law. In almost all cases, employers, landlords, you name it, choose language specifically so that it encourages the other party not to sue them. Almost every lease I signed before I bought my first home had provisions that were illegal based on my state’s landlord-tenant law. Lawyers aren’t idiots. They will, however, try to get away with stuff, hoping the terms never get reviewed by a judge.

It’s apparent to me that if Linden really wanted to use arbitration to settle disputes, their attorneys would have worded the provisions to be in compliance with California and federal law.

What’s pleasurable about this decision is that some smart VW operators might go back and revisit their own EULA and TOS, in attempt to make them worth something.

You can’t sign away essential rights.

Now I know the companies have a lot to protect on their side, but many have became too overzealous. The industry really needs to examine what is legally fair before they err on the side of the almighty dollar, or they’ll get burned in the end.

But ya know…now that I think about it, maybe Linden Labs really did mean OWN. But like: Hahaha you really believe what we said? Lawl! BAN! 0WN3D!