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

[Kent Quirk (Q Linden)]

1) The first line of my comment is that I don't speak for Linden legal.
2) What I said was that if you want to understand legalese, you should talk to a lawyer. That's it.

	Q


On Apr 1, 2010, at 4:54 AM, Gareth Nelson wrote:

> 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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> 
> 
> 
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