[opensource-dev] Can you legally agree to incomprehensible conditions?
darmath at tpg.com.au
Thu Apr 1 03:41:58 PDT 2010
On 1/04/2010 7:42 PM, 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:
You can quote Q's words all you like Morgaine but don't twist their
meaning so that you can continually flog your erroneous dead horse.
That said let's actually look at what he said shall we?
* 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.
It is quite simple what Q meant. What he simply meant, and quite rightly
was justified in pointing out, was that you can't take a written legal
document and an ordinary dictionary and ascertain the meaning and more
importantly the legal effect of a legal document using a dictionary
alone. Especially if you think you're going to anticipate what a court
may or may not do on the basis of that document. Q was seeking to stress
that law like every other subject area, known to mankind, has its own
particular language in which people, judges, lawyers and the
legislators, communicate. Computer scientists are no exception. Nor are
lawyers. Words that are used by lawyers, judges and legislators may or
may not have acquired a technial meaning within legal contexts, within a
jurisdiction, and where it has acquired such a meaning it may in a
particular context be given that meaning. Hell even within the law there
are words that in one legal context may mean one thing and in another
legal context mean another thing altogether.
Q, so far as United States of America, England, perhaps more widely to
be stated as the United Kingdom, Australia, New Zealand and countless
other jurisdictions have "unwritten" or "unstated" law as you damn well
know. That courts in deciding disputes in these jurisdictions, depending
upon your view, "find" or "propound" legal principle to resolve the
dispute. It's also fundamentally flawed to think that lawyers and judges
do not employ logical reasoning in the process of resolving disputes.
They use not only inductive reasoning skills but deductive reasoning
skills both of which are forms of logical reasoning. Inductive reasoning
skills are used in common law jurisdictions to ascertain the legal
principles that are contained in the judgements of judges which
constitute the law. Deductive reasoning skills are used in the
application of legal principles to the factual resolution of cases.
But, and this is where Q was damn right to say what he said, the only
way in which you can actually determine the legal effect of the document
is with a comprehensive understanding of legal principles, including
those to be found in legislation, and especially in common law
jurisdictions, those found by the courts. Attempts to try and ascertain
the legal effect of legal documents without that knowledge are fraught
with danger and they lead to huge misunderstandings and miscomprehension.
> * 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
The above view is something I agree with with one exception. The
exception relates to the notion of programmers being "logical thinkers"
and the apparent suggestion that lawyers aren't. I haven't heard
anything so absurd in my life really. There is a difference between
something being logical and something according to what we actually
like. I challenge anyone to read a written legal judgement of a superior
court in any jurisdiction to find an opinion where the judges, when they
actually wrote their own decision on the matter, weren't at pains to use
logical reasoning to support the decision which they rendered. That the
outcome of a case doesn't accord with our personal preferences doesn't
mean that the decision was "illogical" and not formed on logical reasoning.
Further to the above I dont think there would be much disagreement from
those that read this list that being able to read and write program code
"properly" requires a certain degree of appropriate technical
qualification and experience. It's what distinguishes the seasoned
professional from the "amateur" or new entrant into any field. Lawyers
and judges and people in the law in general aren't different. Hence the
emphasis on consulting a lawyer. But one would probably add that you
should consult a lawyer with experience in the relevant area of law.
> 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 key assumption here is your assumption that the document is
incomprehensible. But incomprehensible to whom? You? Everyone in the
entire world? Everyone reading this mailing list? If you're talking
about yourself then please do so and quite simply state "i don't
understand the document and have no idea of its legal effect".
If that is the case then quite simply don't bind yourself to the
relevant agreement which subjects you to the terms of the TPVP.
Sure I could probably give you some legal information about how the law
in this area works based upon my understanding of English law and
Australian law in this area. Given the historical links of the US to
England then the law might well be the same. It might not. The question
is are you really interested? So far i've reached the view that you're
not looking for a legal analysis that is contrary to the view that you
have. You're looking for the legal analysis that supports your view.
In the context of contract, at least so far as England, and Australia
are concerned, and possibly the United States given its links back to
the English, the law took the view, as far as my legal knowledge is
concerned, that a person that had agreed to something, would be held to
their agreement, unless they were subject to a particular "disability"
that vitiated their agreement, or as a result of the circumstances their
agreement was to be regarded as "non-genuine". This was the case whether
or not the person agreeing readily appreciated what they were agreeing
to or not. And this was evidenced in the rule that one was bound to a
written agreement that they had signed even if they were unawares of
what the document said, or comprehended it. There were circumstances in
which one could claim that the circumstances were such that it should be
regarded as if they hadn't signed it at all. I wont venture into them.
Obviously the act of signature was used as the act to obtain the
individual's agreement to that which was contained in the document.
Whether or not a court would distinguish clicking an "accept" or "ok"
button to a signature is an issue that I don't think courts have, from a
common law point of view in this jurisdiction, fully resolved here. To
soften that approach the law, mostly through the courts, developed
principles and doctrines which softened the principle. For example if a
person was subjected to the use of illegitimate pressure as a means of
securing their agreement then the consent of the person to the agreement
would not be regarded as being genuine and the person would not be bound
by their agreement (The doctrine of duress). A further illustration
would be the doctrine of unconscionable conduct that has been developed
at least in this jurisdiction so that a person couldn't as a result of
their dominant position in relation to another, use that position, to
take advantage of the weaker position occupied by the party with whom
the stronger party may be contracting. That might include taking
advantage of the lack of english skills a person has in understanding a
legal document, when known by the stronger party, and exploited by the
stronger party to obtain the weaker party's consent/agreement. I'm not
sure if the same can be said of US law but here the relevant precedent
would be Commercial Bank of Australia v Amadio a decision of the
Australian High Court. US law might be similar in this respect it might
not, i would anticipate that US law would be roughly the same with
respect to the binding nature of one's agreement where they didnt fully
comprehend the terms they were agreeing to it.
On a final note you wrote:
" 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"
Yes and that's probably why as far as legal documents go I wouldn't give
it a great rating if I was assigning one to it. Using a rating system of
5 starts i'd probably give it 3.5 stars. Is it effective to do what it
sets out to do? Yes. Does that mean it's "good" or "great"? I ask the
question because it seems the GPL is being held out as if its some sort
of majestical perfect legal document and the reality is it isn't. Indeed
one might point to its quality for fostering the erroneous belief, in my
opinion, that the licence which it confers is irrevocable. There may be
a legal basis for arguing that the licence it confers is not revocable
but, in my view, if it is found that one cannot revoke the licence
conferred under the GPL it wont be on the basis of that document alone.
Instead it will be on the back of other legal principles the existence
of which lawyers are well aware of.
Now I hope everyone has a happy easter.
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