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

Gareth Nelson gareth at garethnelson.com
Thu Apr 1 01:54:48 PDT 2010

An interesting point:
If a member of staff at LL is basically saying "none of you can
comprehend this policy", then that surely means none of us can
actually consent to agree to it.

Q - you may have just provided some "fuel" for use in any future court case

On Thu, Apr 1, 2010 at 8:42 AM, Morgaine <morgaine.dinova at googlemail.com> 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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