Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

Evans v. Linden Virtual Worlds Case Continues On

I am continuing to follow the Evans v. Linden case, which was transferred from the U.S. District Court for the Eastern District of Pennsylvania to the U.S. District Court for the Northern District of California. The case concerns the conduct of Linden Research inc., which operates the Second Life® virtual world. The plaintiffs had claimed that Linden wrongfully deprived them of their virtual real property. A review of the docket and the latest scheduling order shows the case is continuing and evidently is in the discovery phase of evidence gathering in anticipation of a motion to certify a class of plaintiffs and eventual trial.
I also had a chance to review the Answer and Counterclaim that Linden and Philp Rosedale filed. An answer typically denies or admits the plaintiff’s allegations in the complaint, and may say that it lacks information sufficient to admit or deny some allegations, which has the effect of a denial. An answer also typically contains certain defenses to the complaint not based simply on a denial of an allegation of the plaintiff. An example is claiming that the plaintiff’s claims are barred by the applicable statute of limitations. A counterclaim is a defendant’s way of seeking relief against the plaintiff. Typically, a defendant will seek money from the plaintiff in a counterclaim.

In this case, however, the defendants’ counterclaim is defensive in nature. It seeks “declaratory relief” -- a declaration of the court in the defendants’ favor. Here, the defendant seeks, first, a declaration that the defendants have not infringed upon any rights of the plaintiffs. Second, the defendants seek a declaration that their conduct falls within a section of the Communications Decency Act (CDA) immunizing conduct undertaken in good faith to restrict access to obscene, harassing, and objectionable material. Defendants explain that Linden suspended or terminated the plaintiffs’ accounts for various reasons under the authority of this section of the CDA.

In specific, Linden claims it acted against one plaintiff because of abusive and obscene communications. Linden contends it suspended another plaintiff’s account because of a hacking exploit to obtain virtual land below the stated reserve price. Finally, Linden asserts it suspended another plaintiff’s account because she allegedly allowed another plaintiff to use her account in violation of the terms of service.

I will continue to follow this case to see if the plaintiff does file a motion to certify a class of similarly situated plaintiffs. In addition, I will watch for any motions that dispose of some or all of the case before trial. It may be that the defendants will seek summary judgment under the CDA section they cite in the Counterclaim by claiming the plaintiffs failed to elicit any evidence that the defendants acted upon any motive other than a good faith belief that they were restricting access to obscene, harassing, and objectionable conduct. The plaintiffs may try to counter that motion with evidence of a financial motive for the defendants’ conduct. We may see the results of these arguments next year.