kurt@tc.fluke.COM (Kurt Guntheroth) (08/01/89)
Is the GNU license enforceable? You bet it is. The GNU license is a contract. You can make a contract with any terms imaginable, no matter how one-sided or egregious, as long as it follows the basic legal format for a contract (offer, acceptance, and consideration from Law 101) and does not contract for something illegal (murder, controlled drugs, etc). Accept the GNU license by using the GNU software and you agree to those terms, unpaletable though they are. You are giving up a bunch of your rights, but the law lets you do that if you want to.
paul@sun600.UUCP (Paul E. Black) (08/02/89)
In article <10031@fluke.COM> kurt@tc.fluke.COM (Kurt Guntheroth) writes: >.... You can make a contract with any terms imaginable, no matter how >one-sided or egregious, as long as it follows the basic legal format for a >contract (...) and does not contract for something illegal (...). I have no legal training, however I understood that courts "commonly" void contracts which are too one-sided on the grounds that the party on the short end of the contract didn't realize how bad it was. On the other hand, I consider myself morally obligated to uphold contracts I explicitly or implicitly enter into. Paul E. Black | UUCP: ...{pyramid,amdahl,ames,sun}!oliveb!cirrusl!paul CIRRUS LOGIC, Inc. | Internet: oliveb!cirrusl!paul@sun.com 1463 Centre Pointe Dr. | Voice: 408-945-8305 extension 210 Milpitas, CA 95035 USA
bill@twwells.com (T. William Wells) (08/03/89)
In article <10031@fluke.COM> kurt@tc.fluke.COM (Kurt Guntheroth)
opens his mouth and inserts his foot, so:
: Is the GNU license enforceable? You bet it is. The GNU license is a
: contract.
It tries to look like a licence (a kind of contract) but it is not. A
contract, to be valid, requires, as you note in your next paragraph,
acceptance by the contractee of the terms. And there are specific
legal requirements on what constitutes acceptance. The GNU "licence"
does not meet them.
: Accept the GNU license by using the GNU software and you agree to those
: terms, unpaletable though they are. You are giving up a bunch of your
: rights, but the law lets you do that if you want to.
Using the GNU software does not constitute acceptance of the GNU
"licence". No matter what the thing says. The most that GNU can ever
get away with, with that "licence", is to have it treated as an
assertion of their copyright; the only enforceable aspects of it are
those that are enforceable under copyright law.
---
Bill { uunet | novavax | ankh | sunvice } !twwells!bill
bill@twwells.comfgz@lakart.UUCP (Federico Genoese-Zerbi) (08/04/89)
From article <795@cirrusl.UUCP>, by paul@sun600.UUCP (Paul E. Black): > In article <10031@fluke.COM> kurt@tc.fluke.COM (Kurt Guntheroth) writes: >>.... You can make a contract with any terms imaginable, no matter how >>one-sided or egregious, as long as it follows the basic legal format for a >>contract (...) and does not contract for something illegal (...). > > I have no legal training, however I understood that courts "commonly" > void contracts which are too one-sided on the grounds that the party This is not quite the whole story. In general (your jurisdiction may vary), a contract if FORMED, if you have the following: 1. Offer. 2. Acceptance supported by valid consideration. There are many requirements on the form of the offer, the form of the acceptance, but disregarding those, the contract MUST be supported by consideration. Consideration is a bargained for exchange. That means that if you offer to do something for nothing, I accept, that is still not an enforceable contract. On the other hand, IN GENERAL, courts will not enquire into the sufficiency of consideration. You are allowed to make as good a deal or as bad a deal as you can. It is sometimes said that "a mere peppercorn will do" and in fact some people exchange things for a penny if they want a gift to have the force of contract. This is in general. There are of course exceptions. Among them, courts will amend or refuse to enforce contracts where overreaching or unfair barganing tactics were used. This means that, yeah, there was consideration, but the court finds the terms to outrageous (perhaps because one party had a much better barganing position), that it would be unjust to enforce the contract (this is something of an oversimplification, but you get the idea). In general, courts have to find something pretty egregious to not enforce a contract for overreaching or some other similar theory. If I were a lawyer, I'd want to represent the guy attempting enforcment every time. Disclaimer: I am not an attorney. The above is an oversimplification. There are many other requirements for contract formation, enforcment and policing the bargain than anybody here is interested in or I have time (or the credentials) to write. Enjoy. Federico Genoese-Zerbi {mirror, xait, cfisun}!lakart!fgz