In Defense Against Stroker Serpentine Content Theft Lawsuit, Linden Lawyers Cite "Unclean Hands" Defense Against Plaintiffs -- an Expert Analyzes Why

The Lindens' lawyers have filed a response to the content theft-related lawsuit filed by Stroker Serpentine and Munchflower Zaius -- the Alphaville Herald has a full copy here. Among the defenses is the legal doctrine of "unclean hands", in which a defendant argues that the plaintiff (Serpentine and/or Zaius in this case) are acting unethically or have acted in bad faith. To me this seemed a surprising defense to make, but since I'm not a lawyer, I contacted an actual one, for his opinion: Sean Kane of Kane & Associates, who's an expert in law related to virtual worlds and online games. Here's his take:

"Linden Lab's inclusion of Unclean Hands as an Affirmative Defense in their Answer to the Complaint may not mean much of anything. There are several Affirmative Defenses that are almost always included in an Answer because if they are not raised they may be deemed waived. Unclean Hands is one of them." (More after the break.)

"Raising Unclean Hands as an Affirmative Defense," Kane continues, "generally means that the Defendant is claiming that the Plaintiff is a bad actor as well so he/she/it should not recover damages due to any allegedly bad acts that the Defendant is committing. Here Linden Lab may just be including Unclean Hands at this juncture to cover itself and may not have any facts to back up its allegations of wrongdoing. By including the Affirmative Defense Linden Lab covers itself if it can later identify any information through discovery that would demonstrate any nefarious deeds by the Plaintiffs. My expectation is that this is the reason for the inclusion. It is unlikely that, without any discovery having been done, Linden Lab has already compiled all of the evidence necessary to prove Plaintiffs have Unclean Hands.

"Alternatively," Kane adds, "it is possible that Linden Lab may believe that it currently has sufficient information demonstrating Plaintiffs engaged in some wrongful conduct and is raising Unclean Hands without the need of further discovery."

Stay tuned as the case continues to its next phase. As this is a highly sensitive issue, please take extra care to be civil in Comments.

Comments

[LittleLostLinden]

Holy double unclean Moly!

Interesting case. Hopefully, whatever the outcome, dynamic shadows will still be on the menu.

[GoSpeed Racer]

So Stroker has unclean hands because his products help others pleasure themselves?

[Sioban McMahon]

The interesting thing about "unclean hands" is that Linden Labs is the literal god of Second Life. They potentially have all kinds of records of activities, or can lead you to think they do. It doesn't seem realistic that they save some of the metaverse info after a certain point, but with something like "unclean hands" they can make someone worry about what might still be stored somewhere. Want to sue us? Let's see what we have on these stored records....

[Jovin]

Linden Lab cannot have 'stored records', it would mean LL was breaking laws - and not just privacy ones. LL claim 'safe harbor' status under the ISP laws which means they cannot be held directly responsible for any content carried on their networks. To qualify for this they can have NO prior knowledge of any material on said networks. In other words they cannot monitor conversations or content because if it was proved that this was possible they would be in breach of the safe harbor conditions and instantly open to all sorts of litigation. Ironically, this position might help LL in their defence of the case against them.

[DagnyT Dagger]

@Jovin

I'm not so sure about that. If they do NOT monitor conversations and content, then why would they be against the Emerald viewer being able to encrypt IMs? You can't convince me that anything you say or do or create in SL is not recorded and stored by LL somewhere, easily accessible should they want to pull it out.

[Arcadia Codesmith]

"take extra care to be civil"

*deep breath*

Linden Labs -- settle this. Now. They're right, you're wrong. Sit down at the table and hammer out an agreement, then make it happen. The sooner you do this, the more you'll save in legal fees.

[soror nishi]

so....dirty hands is just more soap?

[Ari Blackthorne]

I'm no attorney either, but from what I understand of the lawsuit, what I've seen and my understanding of how the grid (and computer networking and systems in general) all work...

I side with Linden Lab on this one.

Gentleman's bet, anyone?

[Jovin]

@ DagnyT

My guess would be that LL are opposed to encryption in Emerald because it would prevent them from monitoring or recording conversations when required to do so by law-enforcement agencies. Presumably they're obliged to assist law enforcement investigating crimes by intercepting specified communications (legally I think it's the only time they're permitted to do it under 'safe harbor') and encrypted communications would mean they couldn't. But that's my guess - I'll check with a lawyer friend and see what he says...

[Jumpman Lane]

tardy! hamlet lmao!