[opensource-dev] A note on preserving "NO WARRANTY" for SL TPV developers

[Carlo Wood]

This is VERY good David.

Someone should get the lawyers AND the management of LL to read this.

On Tue, Mar 30, 2010 at 11:22:36AM -0400, David M Chess wrote:
> 
> I want to weigh in very briefly here, because I was voiciferously arguing with
> Morgaine in AWG the other night, but having considered the TPV policy as a
> whole (and not just believed what it says about itself), I think there is more
> of a problem here than I originally thought.
> 
> In theory, the GPLv2 is all and only about copying, distribution, and
>  modification; whereas the TPV policy ought to be all and only about use.  So
> the two *shouldn't* conflict.
> 
> Unfortunately, as has been pointed out, the TPV policy's wording leaves
> something to be desired here and there.
> 
> At the very top, the TPV policy says rather emphatically:
> 
> "This Policy does not place any restriction on modification or use of our
> viewer source code that we make available under the GPL.  Rather, the Policy
> sets out requirements for connecting to our Second Life service using a
> Third-Party Viewer, regardless of the viewer source code used, and for
> participating in our Viewer Directory."
> 
> and relatedly:
> 
> "If you do not agree, you are not allowed to use Second Life through a
> Third-Party Viewer."
> 
> On the other hand, down below in the Tricky Bits, it says stuff like:
> 
> "If you are a user or Developer of Third-Party Viewers, you agree to the
> following:"
> 
> "If you are a Developer of Third-Party Viewers, you represent and warrant
> that:"
> 
> "All use and distribution of Third-Party Viewers must comply with Linden Lab
> policies and applicable law and must not:"
> 
> It's hard to interpret something that starts "All use and distribution" as not
> placing "any restriction on modification or use of our viewer source code";
> similarly for "If you are a Developer of Third-Party Viewers".  If I get the
> viewer source code, make a modified viewer, never use it to connect to SL at
> all, but distribute it freely for whatever use anyone might want to make of it,
> then the TPV policy says both that it is not placing any restriction on that,
> and that I must represent and warrant certain things, and must comply with
> various policies and laws and terms.  Can't have it both ways!
> 
> The language of the TPV policy seems to me to rather clearly contradict itself;
> up front it claims that what it does is set out requirements for connecting to
> SL via any third-party viewer, but in the body it sets out requirements on
> anyone who *develops* software that someone else might use to connect to SL.
>  This should imho be fixed.
> 
> It seems to me that the main things the Lab wants to accomplish here are:
> 
>   • To make it clear that by providing viewer source code LL are not assuming
>     legal liability for every use someone might make of it (unfortunately
>     rather than just saying that, the current wording tries to explicitly tie
>     that liability to various specific parties, who may or may not in fact be
>     liable, and who are in general just as reluctant as LL is to take on
>     responsibility for things they don't in fact control!),
>   • To make it clear that if either a developer or a user of a nonstandard
>     viewer misbehaves (with a non-exhaustive list of sample misbehaviors
>     provided), they may take any measure they deem appropriate, including
>     banning, account termination, viewer blocking, and so on, to counter that
>     misbehavior, and the target of those measures can't sue them (the ToS sort
>     of already says they can do whatever they want in this area for any reason
>     or no reason; this is presumably just extra caution),
>   • And to lay out what their expectations and standards are for viewers that
>     they are happy about having connect to the Grid (which is, imho, the most
>     useful part of the thing, which has unfortunately been rather obscured by
>     the legalese).
> 
> 
> Note that I'm not by any means saying that if someone writes an evil viewer
> that contains obfuscated code that steals SL passwords, or that contains
> griefing or sim-crashing code, but never themselves uses it to connect to SL,
> that they shouldn't be held responsible.  Certainly they should.  And that may
> be all that the current TPV wording is trying to say.  But the actual wording
> is much broader than that, and viewer developers are, imho quite
> understandably, not pleased.  Essentially the wording says "we take no
> responsibility for the code that we make available, but if someone takes that
> code and changes a single line, they take full responsibility for the result".
>  That is, the current wording seems to require viewer developers to take on
> responsibilities for their code that the Lab itself explicitly doesn't take on
> for theirs.
> 
> I suggested somewhere that the bit about how the developer of a third-party
> viewer is responsible for anything bad that might ever happen anywhere in the
> world was typical lawyer over-reaching.  Someone that I suspect is an actual
> lawyer replied that no lawyer would ever voluntarily sign off on wording that
> was that silly, and it must have been some ignorant business manager insisting
> on it.  Whichever explanation is true :) it would be nice if this were fixed,
> so that the TPV policy really did talk only about the key things I've tried to
> summarize in those three bullets there, and didn't wander off into the weeds
> demanding legal representations and warrantees from every developer of a piece
> of software that someone else might use to connect to the grid.
> 
> Just in case it's helpful (and to apologize to Morgaine :) ),
> Dave Chess / Dale Innis

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-- 
Carlo Wood <carlo at alinoe.com>