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

[Darmath]

On 1/04/2010 7:42 PM, Morgaine wrote:
> 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:
>
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 
<mailto: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.
>
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
>       list.
>
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.

Darmath
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