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

Tammy Nowotny TammyNowotny at mac.com
Thu Apr 1 21:42:04 PDT 2010


Well, a truly incomprehensible contract WOULD be unenforceable, just 
like an incomprehensible law.  The new TOS agreement, however, is not 
incomprehensible.  It's just plain complicated.

The Lindens are obviously trying to walk a fine line between allowing 
3rd Party Viewers and not being legally responsible for them.  Anyone 
who is shocked by that is either naive or obtuse--- or both.

--Tammy Nowotny

Kent Quirk (Q Linden) wrote:
> 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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>>>       
>>
>> -- 
>> “Lanie, I’m going to print more printers. Lots more printers. One for
>> everyone. That’s worth going to jail for. That’s worth anything.” -
>> Printcrime by Cory Doctrow
>>
>> Please avoid sending me Word or PowerPoint attachments.
>> See http://www.gnu.org/philosophy/no-word-attachments.html
>> _______________________________________________
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>>     
>
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