As for persuasive value, so what? Two people entered into an agreement that presumes that Virtual Goods have value? That happens every day, on any number of websites, whenever someone becomes involved in the RMT market. The imprimateur of a judge on this one only impresses people who don’t understand the legal system.

In all, you could only cite this case for the proposition that people enter into agreements that presume the value of virtual goods. This is worthless; of course people do! Citing it for the proposition that the legal system “recognizes” virtual property rights is intellectually dishonest and completely inaccurate. So, yes, you could cite it in a brief. But the proposition you’d be citing it for would be a lie. And you might even face sanctions for it.

To close out the question on precedent v. citation, the key is this: “precedent” in a legal sense is a very specific term that refers to decisions that bind courts to act the same way later. katykiwi is absolutely right that this is not “precedent” in that sense.

This is the kind of judgment that gets noted in a law review article or a treatise, and cited not as “precedent,” but rather for the proposition that some cases that reached the courts have ended in decisions for the plaintiff. I’d expect to see this in a “background” section in a brief, not a “law” section, perhaps to give a judge some comfort that he or she is not totally off his rocker making a more substantive decision along these lines. And notably, it is a judgment. Contrast with the Bragg case, where no judgment was entered at all. There, Bragg just filed a notice of dismissal of his claims and the court terminated the case.

Katykiwi has made some good points re: precedent. I think that issue here just comes down to how the term is used. In a strict legal sense, this is not binding precedent — it does not compel this court or any other to find the same way next time. But for better or worse, consent judgments are referred to as “precedent” with some regularity, both by the mainstream press and by attorneys. Consider this press release from Earthlink v. CyberPromotions and this New York Times writeup of the Bell Jar case, quoting Plaintiff’s and Defendant’s attorney disagreeing over exactly this question.

The reason is similar to this question — that is also an area of law where there’s regularly new twists and arguments arising due to changes in technology. So attorneys have to be a little creative.

My best guess? I see this showing up in a brief via a cite to an intermediate writeup in a textbook or a law review article.

I mean some of these arguments are so thin I could debunk them with something as simple as:

I have a machine that makes cookies. Through clever manipulation of some controls and ingredients, I can get it to make counterfeit $100 bills. I’m not guilty, what are you crazy? The machine made the counterfeits, I’m not responsible!!!

hmm….after reading what I just wrote, I think those last 3 words there are the most telling.

I was a judicial law clerk out of law school, and I know sure as hell how consent agreements work, how my judge would react to that citation, and the result of such a citation. It is a strong demonstration of incompetance and misunderstanding of the law to defend the legitimacy of citation of a consent agreement, whether it is the incompetance of the one citing, the judicial law clerk reviewing the filings, or the judge who would allow such an embarassing citation to stand.

Law students talk about academia and legal journal publications. Real lawyers stick to the proper way to advocate the case of their client. But, I am third circuit and am not the only one to raise eyebrows at the questionable practices and rulings of the ninth circuit and those appearing there.

7 Julynn Lilliehook

This “consent judgment” has no precedential value. It is merely the memorializing of a settlement agreement so that if the defendant breaches the agreement, the lawsuit can be revived and contibue to trial.

It makes it seem as if there was a judgement — but there wasn’t, there was a *settlement*. Furthermore, it makes it seem as if there *is* some kind of precedent, although not significant. But there isn’t any precedent at all, as it is a *settlement*. On his own blog when challenged by several attorneys over this, Duranske began to mumble things like, “well don’t local courts sometimes have different rules about things you can cite, etc”. Again, you cannot pull a precedent — any kind, weak, strong, significant, less significant — out of an out-of-court settlement.

Benjamin Duranske has painted himself into a corner here, as katykiwi Moonflower amply indicates. Indeed, the whole reason Raph ran a headline saying, “A Virtual Property Precedent Established” (incorrectly) is that he picked this up from the news, and some of this news, like Reuters, was using Benjamin Duranske as an “expert,” and he called it wrongly — it was no precedent, as you can’t make a precedent out of a *settlement*. After being challenged on this, he doubled back and began to talk nonsense about oddball things in briefs being “cited” but not really “cited cited”.

Duranske is not currently a practicting attorney (see info here in response to his link page on me).

Duranske is merely gaslighting by suddenly saying like the Red Queen that he means a word to mean something else when challenged.

Re: “My guess is this will be written up in a law review, or a book (in fact I know it’s ending up in a text book, due for publication early April, 2008 — shameless plug) and it will probably get into briefs via citation to a secondary source. People may also point to it directly as well, simply since there’s so little out there on this.”

My guess is that more experienced and sophisticated attorneys will not indulge in this kind of wacky stuff, and if this is showing up as a citation in a textbook, it will create a generation of idiots. Just because Web 2.0 and VW advocates want something to be true doesn’t mean it has been accepted as true. So far, unfortunately for us all who invest in SL, games and worlds are treated as code that is either proprietary code or open-source code or a mixture of both, but not “virtual property” — and the experiment of SL whereby users are granted permission to a certain extent to have their own intellectual property based on the platform is proving to be very difficult to protect and enforce. Taking this to a RL court didn’t reinforce it; if anything, the concept of “virtual property” was undermined by the case being settled out of court.