The SL Bar Association, an informal professional organization for attorneys and legal scholars in the virtual world of Second Life that I founded in late 2006, recently concluded its 2008-2009 elections for President-Elect, Vice President of Communication, Vice President of Finance, and three Executive Board Seats.

Stephen Wu, a California attorney who goes by ‘Legal Writer’ in Second Life, was elected as the organization’s third president.  Wu will follow U.K. attorney David Naylor (’Solomon Cortes’ in Second Life) as President when Naylor’s term expires at the end of January.  From Wu’s nomination statement in the SLBA forums (email-only registration required):

I am a partner in the Silicon Valley law firm Cooke Kobrick & Wu LLP.  You can see my background at http://www.infoseclaw.com, but in brief, I have been a California-admitted lawyer since 1999, and was first admitted to the bar in NY in 1989.  My practice includes software licensing, Internet law, other technology transactions, trade secret/copyright/trademark litigation, and general commercial litigation.  My sweet spot, however, is data protection and secure ecommerce, and I have co-written five books on these topics and give frequent presentations on them, as well as presentations on electronic discovery and digital evidence.  I spent almost five years as VeriSign’s second in-house lawyer before starting my own practice, and before that practiced at two large law firms in the areas of IP and general litigation and technology transactions.

The SLBA’s new Vice President of Communications is Second Life’s ‘Cat Galileo’ (real life law librarian Kate Fitz) who maintains the popular Lawspot Virtual Worlds Law Library.  Last year, ‘Galileo’ was on the SLBA’s Executive Board, and was instrumental in organizing the SLBA’s first-ever in-world Continuing Legal Education (CLE) seminars.

‘Geri Kuhn’ (Geri Kahn in real life) was re-elected to her position as Vice President of Finance.  Over the last year, ‘Kuhn’ has managed the organization’s dues collection and expenditures, and also supervised the process of changing the SL Bar Association’s name (the organization was formerly the “Second Life Bar Association”) in order to comply with changes in Linden Lab’s trademark policy.

Three members were also elected to the Executive Board.  They are Second Life’s ‘Juris Amat,’ ‘Lexis Looming,’ and ”Ida Recreant.’  ‘Amat’ is Tamiko Franklin in real life, a Massachusetts attorney living in Croatia who founded the non-profit Virtual Intellectual Property Organization.  ‘Recreant’ is Ida Jones in real life, a professor of Finance and Business Law at California State University, Fresno.  ‘Looming,’ is A. Craig Abrahamson in real life, a practicing attorney of 27 years based out of Oklahoma.  The Executive Board is responsible for shaping the organization’s agenda for the coming year, and board members frequently head up special projects for the SLBA.

The new Executive Board members and Vice Presidents assume their new roles immediately.  The SL Bar Association has over 100 active members, and regularly holds meetings, lectures, and social events in the virtual world of Second Life.

Lots of blog entries and articles on virtual law recently.  Here are a few links and excerpts.

• Advocate’s Studio, in a post called Pretty Soon We Won’t Need People: “People are connecting on-line in a variety of ways. According to the Legal Technology section of the ABA Journal, legal dinosaurs are going to have to adjust to the virtual practice of law in this Brave New World that is increasingly relying on blogs, social networks and virtual communities.”

• The Cleveland-Marshall Law Librarian’s Blog, in a post called C-M Law Librarians Explore Virtual World:  “As part of a summer seminar on Law Librarians in Virtual Worlds sponsored by the American Association of Law Libraries, Sue and I have been exploring the educational uses of Second Life, the 3D online virtual world. Besides having fun dressing up our avatars, flying from island to island, shopping for freebies, and rezing objects in our virtual office space, we’ve completed a project on the new international Convention on the Rights of Persons with Disabilities.”

• Computing, in an article called Very Real Legal Issues Exist in a Virtual World: “While virtual worlds could face more wide-reaching regulation in the not-too-distant future, there will still be jurisdictional complexities to resolve ­ issues that face those tackling cyber crime today and that have yet to be fully addressed.”

Reader ‘Doubledown Tandino’ recently alerted me to what sounds like a pretty cool Second Life event, “Global Justice Jam: A Benefit Dance Party and Chat about the International Criminal Court.”  From the announcement:

This Wednesday, August 13, at 5PM PST, come to the International Justice Center to catch real world / virtual DJ Doubledown Tandino spinning an eclectic mix of global grooves for your dancing pleasure. During the dance, we’ll also be asking for donations to aid victims of human rights abuses in Darfur, the Congo, Uganda, and Central African Republic. Afterwards, Mr. John Washburn of the American NGO Network for the ICC will talk about why the next US President should support the International Criminal Court.

You can RSVP and get more information via the link above.

World of Warcraft player Antonio Hernandez filed a motion claiming he has settled his dispute with virtual property dealer Internet Gaming Entertainment and asking the court for permission to file the settlement “under seal” (.pdf), but Judge James I. Cohn of the United States District Court for the Southern District of Florida refused to allow the filing under seal (.pdf) unless the parties can demonstrate that there are “extraordinary circumstances.”  The judge left open the possibility that the settlement can be filed under seal, but has made it clear that he will not do so without good reason.  The public cannot access documents that are filed under seal.

Hernandez, readers will recall, was supposed to be the lead plaintiff in a class action lawsuit representing a class of millions of World of Warcraft players against IGE.  A motion for class certification was filed earlier this year, but the court had not yet ruled on that motion when the parties apparently reached an agreement to settle the case.  As I pointed out last month, settlement before class certification is decided raises questions, particularly if the value of the settlement exceeds the reasonable value of a named plaintiff’s individual claimed damages — here, a diminished World of Warcraft experience.

For the full background of this case, see VB’s complete coverage of Hernandez v. IGE. In brief, plaintiff sued IGE on behalf of essentially all World of Warcraft players on the grounds that IGE, by farming gold, spamming chat, camping spawns, and generally diminishing the game experience, allegedly prevented players from receiving the full benefits Blizzard intended them to receive as third party beneficiaries of Blizzard’s Terms of Use and End User License Agreement.

The court, in refusing to accept the filing under seal unless the parties can demonstrate “extraordinary circumstances,” commented as follows:

Plaintiff seeks permission to file a motion to enforce a settlement under seal, because “certain terms of the settlement are to remain confidential.” The motion is unopposed by Defendant. However, the Court has an obligation to consider the public interest before allowing an entire motion or settlement agreement to be sealed. “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).  [...] [I]f a settlement agreement is filed with the court for approval or interpretation, then the parties must demonstrate extraordinary circumstances in order to deny the public access to the agreement. Brown v. Advantage Eng’g Inc., 960 F.2d 1013, 1016 (11th Cir. 1992).

The order leaves open the possibility that the parties could demonstrate “extraordinary circumstances” that would justify filing under seal, but the language of the order seems to limit that possibility, noting that “secrecy has been deemed compelling” in situations seemingly dissimilar to this case, such as “cases involving trade secrets, the privacy of children, the identify of informants, or when the information could be used for scandalous or libelous purposes.”  The court also noted that there is a “presumption of openness” that is “stronger for documents that directly affect an adjudication.”

Commentary

I am very happy to see the court take this position, and I hope that the court subjects the parties’ likely forthcoming motion arguing that the settlement needs to remain secret to this high level of scrutiny.  I say this both as a writer and a lawyer; public access to court records is a cornerstone of the judicial system.  As the court noted, there are good reasons to seal some documents, but the parties here have not made any argument, let alone a compelling one, why the terms of their settlement ought not be made public.  Were this simply a case of a single plaintiff and defendant, no one would care, but it isn’t.  This case is styled as a class action, and the interest of a potential class of millions are at stake.  That is why the judge is being asked to approve this settlement in the first place, and why he was right to decline to seal it.

Notably, the parties’ proposed settlement agreement was not attached to Hernandez’s filing.  The filing appears to have been designed to test the waters on this issue without giving the court the opportunity to immediately make the settlement agreement public.

VB will be watching the next steps closely, and I suspect that public interest groups and larger media outlets (the traditional intervenors in this situation) may now start paying attention as well.

If you’re attending the American Bar Association’s annual meeting in New York City this weekend, I’d like to invite you to attend a panel I’m going to be on Sunday, August 10th from 3:45 to 5:15.  The panel is part of the Science & Technology Law Section’s track, and follows a session on blogs and social networks.  Should make a good law-geek double-header.  Besides me, the virtual worlds panel also features four people who you have undoubtedly encountered at VB over the last two years. From the mailing list for the Virtual Worlds & Multiuser Online Games Committee of the Section of Science & Technology Law:

[D]on’t forget our panel to be held on Sunday, August 10, from 3:45 to 5:15 in the Rendezvous Trianon on the third floor of the Hilton New York.  The panel, entitled “Real Concerns When Practicing in Virtual Worlds” and moderated by [VWMOG committee Co-Chair] Cristina Burbach will feature five renowned experts as speakers:

• Benjamin Duranske, author of the just released Virtual Law: Navigating the Legal Landscape of Virtual Worlds and editor of the Blog “Virtually Blind;”
• Lauren Gelman, Executive Director of the Center for Internet and Society at Stanford Law School;
• Shane McGee of Sonnenschein, Nath & Rosenthal, LLP, Counsel for Blizzard Entertainment in Blizzard v. Donnelly;
• Steven Mortinger, Vice-President and Associate General Counsel at IBM Systems and Technology Group and Co-Chair of the ABA IP Section’s Committee on Computer Gaming and Virtual Worlds; and
• Francis Taney of Buchanan, Ingersoll & Rooney, Counsel for plaintiffs in Eros v. Leatherwood and Eros v. Simon.

In addition, the Virtual Worlds and Multi-User Online Games Committee of the Section of Science & Technology Law will meet Saturday (August 9) from 10-11:30 am in Promenade B of the Waldorf-Astoria.   This will be an open-ended discussion of what the committee should work towards in the coming year.  If you’ll be there, please bring your thoughts and ideas.

Managing Intellectual Property has released its sixth annual list of the 50 most influential people in intellectual property (subscription required).  If you don’t have a subscription, you can check out the top 10 at the Patent Docs blog.

Rounding out the top three?

3.  Sherry Knowles, Worldwide Head of IP, GlaxoSmithKline.

2.  Margot Fröhlinger, Director, European Commission DG Internal Market.

1.  “The avatar,” Second Life.

Thanks to the anonymous editor of Blawg Review for the heads-up.

I appeared on Robert Bloomfield’s popular metaverse news and policy show Metanomics today doing the end-of-show op-ed piece “Connecting the Dots.”  Today’s show was entitled “Open Sim and the Future,” and featured IBM’s Zha Ewry and Linden Lab’s Zero Linden talking about the future of the grid, and their efforts so far.  I know there are some bumps ahead on the road to “the grid” but at bottom, I really like the way Linden Lab is handling it, and Zha’s and Zero’s comments today only solidified that.

The full show is available at SLCN.tv (video), and my Connecting the Dots segment is destined for YouTube (will update when it’s there).  For text fans, here are the first few paragraphs of my video editorial, followed by a link to the full transcript at Metanomics:

The biggest legal impact of “the grid” is that local laws will govern.  Want to run a casino?  Drop a server in Antigua.  But that’s the easy part.  As [IBM’s] Zha [Ewry and Linden Lab’s] Zero [Linden] noted, content export is hard, technically.  It’s also hard legally.  And make no mistake, content export is coming, even though it’s not in the beta.  The marketplace will demand it.

So what happens to my suit, hair, and skin, all of which were designed by talented residents, when I take my avatar to the Antigua world to play some blackjack? And what if the guy who runs the casino there programs his server to let me make unauthorized copies of that stuff?

That’s not a new question.  I dug up an old audio recording from Second Life’s first birthday where then-CEO Philip Rosedale discusses interoperability and export content from Second Life to other locations on the 3D internet.  Philip says: “I don’t think that we fundamentally object to people being able to take their content with them.  I believe that the content people create, even if there are many digital worlds out there for you to be in, the content you create should be your own property.  In the end, the more open systems will win.”

Philip was actually responding to a resident’s concern that Linden Lab might not allow content exporting to other worlds for business reasons.  Today, residents are far more concerned that Linden Lab will allow exporting — perhaps to grids without the same technological solutions in place to protect content…

You can read the rest of the transcript of Benjamin Duranske’s “Connecting the Dots” re: legal issues and “the grid” over at Metanomics.

Quick note to let readers know that I’ll be on Robert Bloomfield’s popular metaverse business and policy show Metanomics on Monday, August 4 at 12:00 Noon, Pacific time.  I’ll be appearing at the end of Monday’s show, Open Sim and the Future, to do the op-ed “Connecting the Dots” segment.  I will be focusing on the legal issues raised by Linden Lab’s movement toward a “grid” of interconnected virtual worlds.  The main part of the show will feature IBM’s ‘Zha Ewry’ and Linden Lab’s ‘Zero Linden’ talking to Robert about the progress they have made so far, and the long-term implications of interoperability on “the grid.”

If you miss it live, you’ll be able to catch it later at SLCN.tv.

I recently came across a press release issued by the law firm of Brackman and Brackman (via Galelio Law, a companion blog to the Virtual Worlds Law Library), announcing the confidential settlement of a business conflict amongst avatars.  According to the parties, the dispute, over a Second Life property called “Sailor’s Cove,” ended amicably.  I thought VB’s readers would be interested in the process, and Bob Brackman, one of the attorneys involved, was kind enough to answer some questions by email.

Banner & Witcoff, a well-known IP firm on the other side of this dispute, also issued a press release (.pdf) regarding the settlement, but I’d briefly met Bob Brackman at the Virtual Law Conference in New York last Spring and I wanted an excuse to talk to him again, so he’s featured.  No slight intended; I hope to catch the Banner & Witcoff guys for the next one.

Virtually Blind: Thanks for taking the time to talk to VB’s readers, Bob.  First, I understand you’ve got a background in criminal law?

Bob Brackman: I began my legal career almost 30 years ago as an organized crime prosecutor in New York State. I also served as an Inspector General, and as New York City’s Deputy Commissioner for Investigations.

VB: But you’re in private practice now, and I understand your firm represented a Second Life land owner who needed to rely on the real life legal system in order to resolve a business dispute with other avatars in Second Life?

Bob Brackman: That’s right. My client, who goes by ‘Patrick Leavitt’ in SL has owned and operated Sailor’s Cove for a few years now.  Two of his former estate managers alleged that they were not employees or volunteers, but full partners in the organization. When all of them “fell out of favor” with each other, Patrick’s estate managers told him they were entitled to two-thirds of the value of the entire estate — now over twenty-one Sims and several voids.

VB: Was your client actually sued in our real world courts?

BB: No, no papers were ever filed. I was fortunate that opposing counsel (representing the other two people behind their avatars) was a reasonable and skilled attorney, and between us we were able to craft a confidential agreement that put the matter to rest and satisfied all of the parties. Had the case gone to litigation, we both agreed the most likely jurisdiction would have been the State of California.

Read the rest of the post »

Fresh off its summary judgment victory against the creator of MMO Glider (a “bot” program that lets people play World of Warcraft unattended), WoW creator Blizzard has now asked the U.S. District Court for the District of Arizona for a permanent injunction (.pdf) which would functionally shut down Glider’s WoW presence.  In addition, Blizzard has asked the court for a relatively unconventional order prohibiting MDY from making the source code for its MMO Glider software available to the public, and prohibiting MDY from helping people develop other World of Warcraft automation software.

Blizzard had previously asked the court to shut down MDY’s WoW operations in its motion for summary judgment, but the court’s summary judgment order did not address Blizzard’s request.  Blizzard’s requests to prohibit open-source release of MDY’s software and prohibit MDY’s assistance in development of independent WoW bots are new to this motion — and seem likely to raise eyebrows in the open source and digital rights advocacy camps.

MDY originally brought this action seeking an order that it did not violate Blizzard’s copyright by selling MMO Glider, but instead, the court ruled in Blizzard’s favor before the case could get to a jury.  For the full background of this suit, see Virtually Blind’s complete coverage of MDY v. Blizzard.

From the current motion for an injunction:

Blizzard respectfully requests that the injunction preclude MDY, Michael Donnelly, all employees and agents of MDY, and any person acting in concert with them from marketing, selling, supporting, or developing Glider or similar software for use with WoW. To ensure that MDY cannot circumvent the injunction and to provide redress for Blizzard’s injuries, Blizzard requests that the following specific prohibitions also be included.

First, the injunction should specifically enjoin MDY from continuing to operate its authentication server. [...]  Enjoining MDY from continued operation of the authentication servers would have the effect of rendering all existing copies of Glider useless, and would effectively protect Blizzard’s rights under this Court’s summary judgment order.

Second, in order to prevent MDY from circumventing this prohibition and to prevent further infringement of copyright and interference with Blizzard’s contractual relations, Blizzard respectfully requests that MDY be enjoined from developing or maintaining Glider. MDY constantly updates Glider to ensure its continued success in cracking Warden’s evolving detection and access control technologies. [...] If the injunction prevents those updates, it will reduce the harm to Blizzard by allowing it to forego constant security updates caused by Glider use.

Third, the injunction should preclude MDY from releasing the Glider source code to third parties, especially those located abroad and over whom it may be difficult or impossible to gain jurisdiction in the United States. [...] Some Glider users have suggested on internet forums that MDY provide the Glider source code as “open source” software—free for use. Ex. C, Shumway Decl. at Ex 4. If MDY is allowed to distribute the source code, Blizzard will be faced with numerous parties around the world infringing its copyright—and possibly doing so without a revenue stream with which to compensate it for damage to WoW.

Finally, the injunction should specifically enjoin MDY from providing assistance to third parties in developing their own botting software for use with WoW. While Glider is far and away the most popular botting software used in WoW, other bots do exist. Blizzard SoF ¶ 218. Numerous other individuals around the world, many of whom may be difficult to sue in United States courts, would undoubtedly be interested in picking up Glider’s mantel and continuing to provide an equally successful bot for use in WoW, something that has thus far proved beyond the ability of anyone other than MDY. Preventing MDY from not only releasing the source code, but providing advice to those individuals creating their own bots would prevent the irreparable injury that could result from the creating of botting software by disparate individuals and companies from whom a judgment might be difficult or impossible to collect.

The exhibits mentioned in these excerpts are available here (.zip).  MDY has said it plans to appeal the original ruling (via Information Week) and would, presumably, seek to stay any injunction pending appeal.