[opensource-dev] Third party viewer policy: commencement date

[Darmath]

On 24/03/2010 4:35 PM, Tony Agudo wrote:
> that user can point to specifically that section of the TPV Policy and 
> claim "By this, you *are* legally liable for my problems, I can 
> actually sue you".
And herein lies why the construction thats sought to be advanced by 
those who have made rumblings on this list are wrong....The clause reads:

"d. You assume all risks, expenses, and defects of any Third-Party 
Viewers that you use, develop, or distribute. Linden Lab shall not be 
responsible or liable for any Third-Party Viewers."

The clause, as with the others, CANNOT DEEM a developer liable to a 
third party such as a user. It's an agreement between LL's and TPV 
developers.

The clause is similar to a clause that is inserted into a car lease 
rental whereby the lessor and the lesse might agree that:

"The lessee assumes all risks and expenses in relation to the leased 
vehicle throughout the rental period."

That clause wouldn't deem the lessee liable to a person that the lessee 
decided could take the vehicle for a spin, who subsequently crashes it 
into a shop building due to defective brakes on the vehicle. Note I am 
not saying that the lessee may not be found to be liable. However, the 
liability of the lessee, which is analogous to the position of TPV 
developers here, may arise as an issue, as between the lessee and the 
person to whom he leant the car, or even possibly the business owner of 
the building that he crashed the car into. But in that case it would be 
for a court to consider the whole of the circumstances as between the 
lessee of the car and the person to whom he said it was ok to take it 
for a spin. The term in the agreement between the lesser and lessee does 
not conclude the liability of the lessee. But IF the lessee had put 
their OWN legal mechanisms in place to avoid their own liabilty to the 
person that he said could take the car for a spin those mechanisms would 
be legally effective the lessee would not be liable.

The effect of that term in that rental agreement would be read by a 
court to effect the liability of lessor as between the lessor and the 
lessee.

And that is what 7(d) does in the context of the TPV policy. A court, at 
least those from a common law tradition, would read the document in the 
context of the entire situation. They dont read snippets and proceed to 
say  "literal interpretation here we go irrespective of how forced those 
interpretations may be".The first sentence in the clause derives its 
meaning and is unambiguously clear from the second sentence:

  "Linden Lab shall not be responsible or liable for any Third-Party 
Viewers".

There is no need for clarification from LL's lawyers or redrafting. It's 
perfectly understandable as it is. It serves the intended legal effect 
that Linden Lab intends it to have. It is NOT LL's responsibility to 
make and design legal protection mechanisms to protect TPV developers. 
It's their own responsibility.

The important thing is that it DOES NOT deprive the developer from 
putting in place their own legal mechanisms to protect the developer 
from liability to users and other third party's.

The ONLY way that you could claim that TPV policy had the effect that's 
been sought to be argued so loudly on this list is if you construed it 
as an agreement between the users of TPV's and TPV developers. And quite 
frankly it's not and the context of the document makes that reasonably 
clear. It is a policy that takes effect as part of a much larger 
agreement between, on the one hand LL's and users of their services, and 
on the other hand between LL's and TPV developers. It is possible that 
LL's could have made the documents two separate documents but as its 
shown it need not have and its reasonably clear without having to do so.

On the subject of whether there is anything that renders the TPV 
developer liable to LL's addtional to what a TPV developer may already 
be exposed it is my personal belief that there is nothing in that 
document that adds anything on that front. Aside from the TPV policy a 
TPV developer, as a result of developing software that may be used to 
connect to LL's service,/* may*/ very well be found to be under a legal 
duty to take reasonable care in the design of any additional code that 
goes into that code. A duty imposed by the common law of negligence 
separate and distinct from any legal agreement.

Additionally I dont think anyone would seek to suggest that Microsoft 
becomes liable to a company here in melbourne Australia when as a result 
of my use of the windows operating system at my home I manage to lose 
valuable information/data belonging to the company here in Australia due 
to  bug in the windows os...Now draw the approriate analogy substituting 
the relevant parties as needed....Microsoft's place is assumed by the 
TPV developer. The place of the melbourne company is assumed by LL's. 
And of course I as a user am now using the TPV developed by the TPV 
developer...So if people wouldn't suggest that Microsoft is liable why 
would we be now suggesting that the TPV developer is liable. Because of 
what's in the TPV policy? I don't think so!

I dont know what if any legal backgrounds those who have sought to argue 
a contrary interpretation to that outlined above have. But being a 
lawyer in training, which means I know damn well i've probably said more 
than I bloody well should have on this subject, I stand by my 
interpretation of the document. Interestingly it seems to concord with 
the views held by laywers who drafted this on LL's behalf who LL's is 
standing behind. Yet those views haven't been hirtherto accepted. 
Accordingly, I strongly state,* nothing in this document is to be 
construed as legal advice in anyway whatsoever to anyone. *I* *will 
adopt the position that LL's has taken. If you are that mistrusting of 
what you've been told about the legal effect of the document there are 
three choices:

1. Go and see and pay a lawyer who is appropriately qualified to advise 
you on the legal effect of this document;
- I understand this is not practical. I myself am very a very poor 
university student who amazingly survives on very little money.

OR

2. Discontinue your efforts in working on your viewer.
- I'd regard this as a real pity if you did because I dont believe there 
is anything that sensibly should lead you to that result.

OR

3. You can accept it as it is and continue to develop either a. hoping 
that you are wrong; or b. believing that you are right and recklessly 
going about development anyway.

OR

4. Adopt the approach that's been suggested of terminating your user 
account with LL's thereby freeing you from your relationship with LL's 
and develop your TPV. It's not like LL's can bind you to terms and 
conditions as part of an agreement which has been terminated.

HTH




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