Both defendants and plaintiffs have now filed supplemental briefing after having had oral argument before Judge Robreno in the Evans, et al v. Linden, et al. class action lawsuit arguing primarily whether the case must continue in California or may continue in Pennsylvania. From the Court's orders and the briefing, it looks like the court is curious as to which terms of service Second Life claims applied to each of the plaintiffs and when. From reading both briefs and the supplements, the issue isn't really very clear.
It would seem to me at this stage it would really be Linden's duty to have made it clear to its users which version of the TOS would apply to which avatars and when. The thorn in the side of Linden's side appears to be the simple fact that while Linden takes the position that it can unilaterally force a change in a TOS on the other side without consideration or mutuality, if it freezes one account with content for the same user under the then existing version of the TOS it still allows that user to create a new account under a later TOS but does not move that user's content / property or real estate holdings into that user's new account. The net result seems to be that a user can be terminated under one TOS, fairly or unfairly, and then allowed to create a new account under a later version but must lose all their holdings. As before, as well, if an existing user that is not suspended or terminated decides the terms of the new TOS are not fair, they lose their property. Since that property is not yet capable of being transferred to other systems, the unilateral modification of the TOS still smacks of unfairness.
Before fully being able to analyze these latest motions and their supplements, I wait to read the transcript of the hearing before Judge Robreno which looks like it may be available later this month, and of course, with great intellectual curiosity (to the extent I have any remaining intellect), will look forward to the Court's decision.
