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

Rob Nelson nexisentertainment at gmail.com
Thu Apr 1 01:54:03 PDT 2010


How many times must it be said?

The problem isn't that there's people interpreting it.  The problem is
that there's NO ROOM FOR INTERPRETATION.

Section 7a:

> If you are a Developer, you are responsible for all features,
functionality, code, and content of Third-Party Viewers that you develop
or distribute.

I honestly am not going to believe a Linden who's handwaving what is an
OBVIOUS and CLEAR statement simply because we're not lawyers.  I mean,
honestly.  What is a lawyer going to say?  "Oh, by that, they actually
mean you are NOT responsible"?  I HIGHLY doubt that.


On Thu, 2010-04-01 at 09:42 +0100, Morgaine wrote:
> On 21st March, Q Linden explained to us 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 
>     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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