An NFT trader from Texas has filed a lawsuit against trading platform OpenSea, saying the company was responsible when his Bored Ape image was stolen from his crypto wallet. The trader is asking for the return of his ape and $US1 million in damages.
Timothy McKimmy filed a suit last week in the U.S. District Court for the Southern District of Texas, alleging that OpenSea knew about vulnerabilities on its platform. The NFT in question, Bored Ape #3475, has “significant value” according to McKimmy’s lawsuit, despite the fact that it’s still unclear what kind of “ownership” someone can claim over an image simply because a receipt for it has been registered on a blockchain.
From the lawsuit, where OpenSea is listed as the Defendant:
Defendant’s security vulnerability allowed an outside party to illegally enter through OpenSea’s code and access Plaintiff’s NFT wallet, in order to list and sell Plaintiff’s Bored Ape at a literal fraction of the value (at .01 ETH). Essentially, OpenSea’s vulnerabilities allowed others to enter through its code and force the listing of an NFT.
The stolen NFT image, which is pictured above, includes traits the lawsuit says are “rare,” including a gold hoop earring, sunglasses, and a wool turtleneck. And if you, like Gizmodo, are wondering what that blue thing is on the ape’s head, it’s a baby’s bonnet.
Creators of NFT collections often use automation software available on GitHub to create thousands of images, such as the Bored Ape Yacht Club series, and the “rare” traits are programmed in to make certain images more valuable. In this case, the baby’s bonnet is considered rare because only 2% of the collection’s 10,000 ape images include one. Whereas 12% of the Bored Ape collection’s backgrounds have that Army Green colour seen above, a trait considered much less rare.
In this case, the lawsuit points to Justin Bieber’s recent purchase of a Bored Ape and claims McKimmy’s ape is more rare that the pop singer’s NFT. And logically, the suit argues, a rarer ape should fetch more money.
From the lawsuit:
For example, Justin Bieber purchased Bored Ape #3001 for 500 ETH, or $US1 ($1).3 million at the time of the transaction. Bieber’s Bored Ape has a rarity score of only 53.66 and a rarity rank of #9777. In contrast, Plaintiff’s Bored Ape has a rarity score of 138.52 and a rarity rank of #1392. It is in the top 14% rarity, and it is significantly rarer than Bieber’s. Thus, Plaintiff’s Bored Ape’s value is arguably in the millions of dollars and growing as each day passes.
But as internet sleuths have pointed out, it’s unlikely Bieber paid for that ape with his own money. In fact, Bieber’s crypto wallet seems to have gotten a huge payment of ethereum before the ape purchase, leading many people to speculate that his deal was more or less a celebrity advertisement for NFTs. Other celebrities have also started promoting NFTs, including Serena Williams, Tony Hawk, and Reese Witherspoon.
McKinny’s stolen ape is currently listed on OpenSea for 225 ether, or roughly $US567,981 ($788,471) at current prices for the cryptocurrency. McKinny is seeking a jury trial in the civil suit and also wants to get attorney’s fees. OpenSea and lawyers for McKimmy did not respond immediately overnight to a request for comment. We’ll update this post if we hear back.
Does McKimmy have any chance of winning this case? Possibly, depending on whether he can prove it was actually OpenSea’s fault his ape was stolen. But it’s probably not a good sign that the lawsuit misspells McKimmy’s first name as “Timoty.”
Not a great start, folks. Better luck with your next filing.