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

Gareth Nelson gareth at garethnelson.com
Fri Apr 2 04:03:47 PDT 2010


Of course, the simple way to not be held liable for flaws in TPVs is
to say to users "we do not support any viewer not developed by us, and
you accept all liability for your use of any unsupported viewers". I
don't think anyone is asking LL to accept liability for bugs in third
party viewers, or asking for LL to tolerate obvious abuse such as sim
crashers - but none of us here has perfect coding skills, so all of
our code WILL be buggy at times. I've said before that personally, i'd
only ever offer a warranty on my code if I was paid for it - offering
a warranty on something infinitely reproducible is infinite liability
otherwise.......... and LL are surprised by third party devs not
wanting to accept infinite liability?

The other thing they could do is produce a set of guidelines for
developers, which must be complied with to be listed in the directory,
and a warning to users that if a TPV developer is not willing to
comply to these guidelines, then the viewer may cause trouble for
anyone who use it. Removing the requirement to list RL contact details
would also make more developers willing to list themselves in the
directory - as it is, I can picture very very few residents are going
to be naive enough to think "if it's not in the directory, it's not
good".

Q - You are correct that you don't speak for legal, but surely you can
see how any member of staff at LL (whether that be yourself, one of
the legal team or even M) saying that we should not try to interpret
the policies your company would like to hold us to could cause
problems in enforcing those policies. As it is, I personally find
legalese relating to copyright ,TOS and software licensing matters
fairly simple to understand and often have had actual lawyers
confirming my understanding as correct, and I find the TPV policy
rather simple to understand. I have not yet taken the document to a
lawyer to review though, as i'm not willing to pay just to get a "yes,
you were right - it'd make you liable" and I would not want to bog
down the few pro-bono attorneys i'm aware of with this rather
pointless work either (even if they would be willing to accept it).



On Fri, Apr 2, 2010 at 5:42 AM, Tammy Nowotny <TammyNowotny at mac.com> wrote:
> 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

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