A beginning with no end in site... plaintiffs filed their opposition to Second Life's request that the Court dismiss and/or transfer the action to California.
The entire filing is available here in zip format. Virtual Land Dispute (includes the opposition and affidavits).
"As Yogi Berra once famously said: 'It’s déjà vu all over again.' Once again, Defendants Linden Research, Inc. (“Linden”) and Philip Rosedale (“Rosedale”) are back before this Court requesting that claims stemming from its misrepresentations about virtual property ownership rights in the virtual world Second Life ...."
Plaintiffs have accurately pointed out by reference to Linden's opposition and affidavits, that in fact, Plaintiff Evans agreed 72 times to a Terms of Service Agreement that the Court had declared unconscionable and void. Curiously, Linden seems to have missed this critical fact when it filed its opposition in the first place and claimed that Evans accepted the TOS at least 72 times and therefore his claim cannot stand but must be dismissed because the TOS precluded it. Similarly, Plaintiffs pointed out that Linden's forum selection clause requiring litigation to take place in California is equally unconscionable as the original arbitration clause and should be stricken as was the clause in Marc Bragg's case and for nearly the same reasons as it is equally unfair even in its most recent prepackaged form (now as of March / April, 2010).
The forum selection clause apparently requires a second life user to travel to California to enforce his / her furry's rights if the matter is over $10,000 without regard for the costs of doing so, and if under $10,000, as is Mr. Evans the Locksmith's claim, then to arbitrate and if he loses, then be subject to a $1000 fine regardless that the original claim may be only $100, or even $1.00? When did Linden become entitled to levy a fine under the U.S. law?
The opposition relies heavily on the Bragg v. Linden, et al opinion authored by Judge Robreno. While Defendant Second Life takes the position that Judge Robreno should allow the California courts to resolve these novel legal issues of virtual property rights, Mr. Archinaco for Plaintiffs points out that Judge Robreno should be considered competent to do so in Pennsyvlania since after all, Judge Robreno, Mr. Archinaco notes, is probably the only Judge in the country to have written an opinion on virtual property rights.
Summarily, Plaintiffs retrace prior history and logic clarifying the elements of unconscionability, clarify some confusion that surrounded the numerous TOS, dates they were issued, and the common terms that pervade them all and that should be considered void, and present to the Court the discretion granted by the law to decide whether to retain this case, or ship it to California into Linden's "backyard".
As part of the opposition, Plaintiffs attach an amended complaint to cure a technical deficiency in affidavits Defendants identified.
