[opensource-dev] Can you legally agree to incomprehensible conditions?

[Morgaine]

On 21st March, Q Linden explained to
us<https://lists.secondlife.com/pipermail/opensource-dev/2010-March/001195.html>that
legalese is not a language amenable to "common sense" interpretation,
and more specifically, that programmers like ourselves should not expect to
understand this Linden TPV policy document using our normal logic and our
normal dictionary.  I'll repeat his words here for clarity:


*    Kent Quirk (Q Linden)* q at lindenlab.com
<opensource-dev%40lists.secondlife.com?Subject=%5Bopensource-dev%5D%20Third%20party%20viewer%20policy%3A%20commencement%20date&In-Reply-To=20100321165503.GD4386%40alinoe.com>
    *Sun Mar 21 10:24:13 PDT 2010*


   - I'm emphatically not a lawyer and I don't speak for our legal team.
   But:


   - Legalese is a specialized language. It's not strictly English, and it's
   not always amenable to "common sense" interpretation. Think of lawyers as
   people who write code in an underspecified language for a buggy compiler,
   and you begin to understand why legalese is the way it is. There's a lot of
   law that isn't stated, but is actually implied by the context of the
   existing settled law. What that means is that if you're not a lawyer, you
   probably shouldn't be attempting to interpret legal documents -- especially
   not for other people. Similarly, if you're not a programmer, attempting to
   interpret program source code is a risky business. Programmers are
   especially susceptible to trying to interpret legal documents using a normal
   dictionary because they're logical thinkers. That doesn't always work. If
   you have legal questions about the implication of documents, you should ask
   a lawyer, not a mailing list.


   - Similarly, any comment by one of Linden's lawyers in this forum or any
   other could possibly be treated as legally binding. That also goes for
   Linden employees, especially those with any seniority. So you're unlikely to
   get further remarks or "clarifications", except general statements that
   don't address specific questions. The policy was revised based on comments
   on this list and elsewhere. That's probably a pretty good indication that
   Linden Lab's lawyers now think it's clear enough to state its intent and to
   stand up in court if they need it to.


   - Q



I've been thinking about this extraordinary post and its relationship to our
ongoing saga about the TPV, and I fail to see how any rational person could
agree to something unknown, except under duress.  Is it even legal to be
required to agree to the incomprehensible?  Does anyone know how the law
works in this area?

The GPL license was written by FSF lawyers specifically to be understood by
programmers, so it's no surprise that the large majority of people here
understand it. Given that Lindens claim that they are issuing a valid GPL
license, perhaps one might accept that at face value, and assume that GPLv2
clauses 6, 7, 11 and 12 remain intact and valid.  Therefore there are no
"further restrictions" imposed on SL TPV developers (clause 6), and the "NO
WARRANTY" clause (11-12) continues to protect developers from downstream
liability, and no "conditions are imposed on you that contradict the
conditions of this License" thus making the license valid (clause 7).

Given the forgoing, the officially incomprehensible TPV document then no
longer matters to SL TPV developers, because their rights and freedoms and
lack of liability are determined entirely by the GPL.  (It could be no other
way anyway, since we are told that we cannot understand the TPV.)

That leaves only the matter of *users* of TPVs behaving responsibly when
they use TPV clients in SL, with which I'm sure every person on this list is
happy to agree.  (Note that developers become *users* when they connect to
SL, and are bound by the same requirements as users.)  When users do
something bad with a TPV client, or indeed with a Linden client, then
naturally they are personally responsible for their actions.

In the absence of a TPV document that we can comprehend, perhaps this is the
best that TPV developers can do, since agreeing to incomprehensible
conditions is not something that any sensible person should consider.


Morgaine.
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