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Court Ruling Clouds Open Source Licensing
JosefAssad writes "In a decision centering around a question of a violation of the Artistic License, a San Francisco court has denied an injunction against Matthew Katzer in the favor of Robert Jacobsen of the JMRI project. Importantly, the decision makes the point that the Artistic License is a contract, an interpretation that the Free Software Foundation has been keen to avoid as a legal stance. The JMRI project has a page up with the legal background and developments."
So what does this do for EULA? Do all the obnoxious terms of use suddenly vaporize? Can people now publish Oracle studies? Can I now use Front Page to say bad things about M$? Can I now use Windoze under as many VMs as I want and serve it with Xforwarding or as a web service because, I'm not really making a copy and that's all that copyright halts? I can see all sorts of ways the non free software world will rue the day copyright was weakened.
Friends don't help friends install M$ junk.
People have been complaining about the clarity of the Artistic License for years. I don't see this having any significant effect on any other Free Software licenses, especially not the GPL (since the GPL is explicitly designed as a copyright license rather than as a contract).
-- The act of censorship is always worse than whatever is being censored. Always.
The FSF said the Artistic License was flawed. They were right. The fact that it is flawed doesn't affect the GPL. Nothing to see here folks, move along.
This case is about the "Artistic License", and not the GPL!
And the case was about a preliminary injunction, not the validity of the license itself.
Looking at all this legal mumbo-jumbo (going through the chronology etc) makes me realize there was actually some sort of upside to just having it out with knives...
IANAL, but I think the Oracle studies parts are probably quite challengable and probably difficult to enforce. The question is, how much money do you want to pay to prove that to a court?
Contract law does change a number of things, but it doesn't cause EULA's to vaporize. They are after all "End User License *Agreements*" where "Agreement" is used to imply a contract relationship.
I would also note that the GPLv3 has dropped all pretenses of being anything other than a contract. It doesn't state that it isn't a contract anymore, and certain clauses go well beyond copyright agreements (i.e. they give some people the right to manage terms of a copyright license independant of any copyrights of their own).
Personally, though IANAL, I think the differences are subtle but not altogether meaningless.
LedgerSMB: Open source Accounting/ERP
The GPL has never been tested in a US court.
Do you even lift?
These aren't the 'roids you're looking for.
The GPLv3 is still structured as a license (or a set of licenses, with the patent clauses) rather than as a contract. It still only triggers on things that would violate copyright law (modification and distribution) rather than use. What, specifically, would make you think otherwise?
-- The act of censorship is always worse than whatever is being censored. Always.
First of all, as another posted pointed out, the GPL hasn't been tested in a US court; more generally. it is not a magic bullet that guarantees your software will be Henceforth And Forever Free, and it would be nice if people would stop assuming it is. Second, not everyone wants their software to be "Free" in the way RMS does -- the Artistic License is a nice middle ground between the GPL and the BSD, it's the license under which one of the most popular pieces of software ever written (Perl) is released, and it certainly should be possible for authors to use it without being afraid that an ill-informed court will undercut their rights.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
NYCL, since you are the only layer who reads /. regularly, can you break this down to a few paragraphs that us mere mortals can comprehend?
Hrm. What's suddenly very unclear here is the difference between a 'license' and a 'contract'. I'm fairly clear on what constitutes a contract: exchange of consideration and all that. A license, however, seems to be very different - it's almost like a bizarre form of contract, where party A will let party B behave in some way given certain conditions, but without an exchange of consideration. The odd thing is that I'm thinking (again, this is kind of thinking out loud here) it appears that there is some implicit consideration exchanged in a 'license': that is, the thing of value is whatever is being licensed. I suppose the question is what party B gives back to party A in that situation, and that's probably where the difference between 'contracts' and 'licenses' lies.
In instances where someone pays for a license, does that implicitly turn the agreement into a contract because there was an exchange of consideration with terms? From the little I know of contract law, I think it does, and calling it a 'license' instead of a 'contract' is just confusing things with terminology.
I've done some quick looking for the difference between a license and a contract and I can't really find anything that's a definitive discussion on the matter.
"There are a dozen opinions on a matter until you know the truth. Then there is only one." - CS Lewis (paraprhase)
Is it? Does anyone even know what the actual results of the legal text are? As far as I can tell, it basically says "you can't modify unmodified copies" and "you can't sell this software, but you can charge money for it".
Licenses only do things that they actually say, not things that someone hopes they say. Licenses are one of the places where just trying isn't good enough - you have to get it right. The Artistic License got it wrong enough that even the Perl people aren't using it for anything new - they're using a revised version that's significantly more clear.
-- The act of censorship is always worse than whatever is being censored. Always.
and it certainly should be possible for authors to use it without being afraid that an ill-informed court will undercut their rights.
Well, from what's going on in this case, it's starting to look like the Artistic License is failing to protect those rights, doesn't it? Can you be absolutely certain that an ill-informed court is at fault, and not a poorly written license?
I mean, it's pretty damning when you can't get an injunction against someone who admits copying your material and selling it.
sic transit gloria mundi
Is the injunction in favor, or the decision?
Inventions have long since reached their limit, and I see no hope for further development.-- Frontinus, 1st cent. AD
It depends on what you mean by "tested". It was most definitely at issue in Daniel Wallace v. Free Software Foundation, Inc., where the plaintiff sued the FSF for anticompetitive price fixing (and lost, and had to pay court costs.).
If I recall correctly, the GPL was also at issue in one or more of the SCO cases, though I don't know whether the court ever ruled on it.
http://outcampaign.org/
I can't tell from the summary if the good guys are winning -- or losing.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Looks like the KAM Industries web server has given up.
http://www.trainpriority.com/ , http://www.kamind.net/
both are giving a "Server Error in '/' Application".
Looks like asp died to me.
And it doesnt need to be to be completely vaild, which too many people here just dont understand.
The GPL is based on copyright law. That is, the GPL allows you to copy under certain circumstances. Copyright law is very well tested and understandable - if you dont agree to the GPL, you dont have the right to copy. Simple, aint it?
That's why the GPL does not need to be tested by itself and while it's a copyright licence it will never need testing.
Too much has been made over perceived distinction between 'license' and 'contract'. A 'license' is simply a promise (by the licensor) not to sue (or use self-help against) the licensee for doing the thing(s) covered by the license. That promise only becomes binding when supported by consideration (or consideration substitute) on the part of the licensee (possible exceptions in the case of real property n/a here). Of course, when a promise is given in exchange for consideration, the result is an agreement enforceable at law, i,e., A CONTRACT.
The law is not an ass. No really.
What's suddenly very unclear here is the difference between a 'license' and a 'contract'.
The terminology is meaningless.
You can call it anything you want, but that does not change what the GPL or any other license says and what that's based on. These things are based on copyright, where the author alone has the right to publish works. That power must be absolute to be worth anything. Copyleft licenses generously give people that right as long as they agree to a few simple conditions. People who refuse to obey those conditions lose their right to distribute.
The fact that copyleft authors are not collecting money should not be held against them because they are doing what copyright law was designed to encourage. In every other copyright violation case, the authors are allowed an injunction because the rogue publication does the author real financial harm. That harm, for a limited time, is held greater than the good done by extra publication. In the copyleft case, harm is also done to the author and the public. The author is deprived of control of work and potential revenue, which should not be ignored any more than the revenue from a previously unpublished work. The public is also deprived of their freedom. That freedom has motivated publication of lots of high quality software. If the purpose of copyright is to encourage the creation and distribution of public works, software freedom must be protected and preserved.
If these jokers managed to weaken copyright, they will undo the power that also protects most non free software. You can't weaken control of free work without weakening that of non free work and because non free publishers depend on so much more control, that weakening will be more important to them.
Friends don't help friends install M$ junk.
Anyone know which version of the AL the JRMI guys are using?
sic transit gloria mundi
So what if the courts decide it is not valid then the rest of US copyright law must/will be thrown out at the same time. This in itself is not a bad thing.
Undetectable Steganography? Yep, there's an app fo
This is why I prefer to dedicate my material to the public domain rather than release it even under the most permissive licenses. There can't be some later legal problem with the license I've selected if I didn't select one.
The difference between 'license' vs 'contract' has been explained on Groklaw, several times. Please visit the site, look it up and get educated.
Undetectable Steganography? Yep, there's an app fo
not everyone wants their software to be "Free" in the way RMS does
Not everyone wants to publish a newspaper either. That does not make it right to restrict presses.
The issue is what control authors have over their work. This court has weakened the control everyone has. Following the idiot logic of this court, I can take your unpublished manuscript, promote it, sell it and never fear an injunction simply because you did not restrict your work enough.
Friends don't help friends install M$ junk.
The GPL has never been tested in a US court.
False
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
That's not a test of the GPL, it's a test of representing yourself in a lawsuit and how badly you can do if you're not a lawyer.
IAAL, and Oracle has a solid case here. If they are able to prove that the said licensee unknowingly disclosed that the license is a contract, even though such may not be the case, then the plaintiff has a full legal discourse available to collect the aforementioned damages. The communistic nature of the GPL, and especially GPLv3, could easily prove to be detrimental to the FSF stance that it protects users' freedoms. In the eyes of the court, it may as well mean that it restricts users' freedoms by restricting their rights as to what they are allowed to do to the software. In that case, the most likely outcome is GPLv3 being outlawed, while GPLv2 would suffer greatly due to its association with the FSF, Once again, IAAL.
A contract requires the informed consent of both parties entering the agreement. It has yet to be proven in a court of law that clicking an 'OK' button equates to informed consent, especially if the terms of the "agreement" are not presented prior to the purchase.
Support Right To Repair Legislation.
Why should anyone rely on a single source for an explanation? Clearly, you don't have enough of a grasp on the explanation Groklaw provided to counter the GP; you are in effect saying "You're wrong because I heard something different elsewhere, go look up my source." At best, it shows you are being lazy, at worst that you don't understand and are willing to trust certain sources uncritically.
Groklaw is a great resource for legal understanding of issues related to OSS. However, merely accepting what you read there because they are the "good guys" is not going to lead to any understanding. If you had any understanding, you could address the GP on his own terms.
It's not offtopic, dumbass. It's orthogonal.
For the most part, EULAs are divided in to parts that explain rights or restrictions that already exist or try and take away rights they can't. Thus it usually is a case of either something that can be enforced, but only because there's existing law about it, or something that is useless. The main reason companies do EULAs is to have a tool to try to scare people in to doing what they want. It isn't as though they are actually enforceable in court. Clicking "yes" isn't a legal agreement to a contract, and contracts must involve an exchange, and be executed prior to the exchange.
iirc, it's still at issue in IBM's counter-claim against SCO, for continuing to distribute Linux in violation of the GPL. In the judge's big ruling in SCO v. Novell, he's effectively cratered all of SCO's cases. What remains to be seen is how deep of a hole can be dug in Linden, Utah by all the various counterclaims (and Redhat's claim of trade interference). Beyond that, it is possible that SCO shareholders might go after McBride for fraud and materially misrepresenting SCO's legal case.
It's not offtopic, dumbass. It's orthogonal.
OSS license proliferation. Bad licenses will perish, and hopefully people will be more careful when selecting a license. I've got a feeling that people are going to be reviewing their licenses now, in light of this ruling.
It's not offtopic, dumbass. It's orthogonal.
Will people STOP trying to say that posting the latest South Park episode on YOUTUBE is fair use. It is not.
heh. Groklaw is no way to get educated, son. That lightweight site doesn't contain anything sufficient to refute what I've said. (Stallman's wishful thinking and a few rogue jurisdictions notwithstanding.) Btw, one of the implications of licenses being interpreted and enforced as a matter of contract law is that they are governed by the substantive law of the forum (e.g., State) which is subject to some variation.
The law is not an ass. No really.
Make linux run games. ALL GAMES. Get to work. Stoip looking at me like that. ??? PROFIT!
IANAL, but Oracle has a solid case, just like Lexmark had a solid case against SCC for slavishly copying the copyrighted software from their toner unit chips. Yet SCC prevailed in a defense of copyright misuse.
Oracle's case amounts to "You agreed to it." The attack on it might relate to questions of contracts of adhesion, procedural unconscionablily, competition law, or the like. In short, I think there is a good chance based on other contracts which have been voided that with enough time and effort, this clause might be vulnerable.
I believe that there are a number of bases relating to consumer contract law and copyright law which could be used to attack the Oracle clause. I have neither the money nor the time for such a fight though, and I would sooner pick a fight with some dual-license vendor over whether linking means derivation (because that equation is closer to my business than anything to do with Oracle).
As for your points regarding the GPL v3, I do agree that there are *serious* concerns that the license might be so far overreaching that it might be unenforceable on the basis of copyright misuse (particularly the implications of section 7 as relates to the Complete Corresponding Source Code). However, I do not see this being a viable method of attaching the GPL v2. One bit of analysis which makes similar claims is a bit of legal analysis mentioned in my latest journal entry (Why I Hesitate....).
The major arguments that I have seen relating to the GPL v2 are:
1) Section 2(b) could be seen as overreaching and pushing the limits of copyright law, laying claim to code that the author has no right to claim. This claim usually fails to mention at all the "mere aggregation" clause which would seem to include any work including the program other than a derivative work.
2) That the GPL is copyright misuse because it attacks the very system that copyright law was set up to protect. I would find this difficult to imagine in a court opinion because of the number of businesses which have successfully used the GPL to protect Thus the courts should not prevent businesses from deviating from standard licensing models just because they are at some point unusual.
Furthermore, the GPL v2 can be read easily as being fairly limited in scope (only those works where sufficient creative content is transferred could be derivative works, and mere dynamic linking would probably not apply. As such, the FSF's faq to the contrary, the scope of the effect of the GPL v2 may actually be quite limited. (This is not the case with the GPL v3.)
My most recent journal entry has a bunch of information on the GPL v2 and v3 as it relates to one of my projects.
LedgerSMB: Open source Accounting/ERP
The fact that the terms of the GPL are triggered by copyright doesn't magically mean that it can't be viewed as a contract by a court.
Nevertheless, the previous poster is correct. A mere license, standing alone, is unreliable. It can be unilaterally withdrawn by the licensor, at any time, for any reason, or for no reason at all. At most you would be able to fight to get a bit of time to shut down whatever you were doing in reliance on that license gracefully, but quickly, rather than having to stop instantly. It's like someone inviting you onto their land, then ordering you to leave.
So essentially, if Linus has a change of heart one day and says, that his portions of the Linux kernel are no longer GPL'ed, then this means it is no longer so, and worse still, that none of the portions based on his work can continue to be distributed either, most likely, which results in serious problems.
That's no good. And it's particularly contrary to the goals of the FSF in that if someone obtained a copyright to some important piece of code, they could make a lot of mischief by terminating the license. Sure, a replacement would come along, but great harm would be suffered in the meantime.
The GPL really is a contract, however, in that it imposes a contingent obligation on people who work under it. In order to receive the benefits of the GPL, a developer has to promise that he will abide by the requirements of the GPL (e.g. his distributions will be under the GPL). It doesn't obligate him to make distributions, but that just means that his obligation doesn't trigger until some contingency is met; it's still there, however. In exchange, you get an assurance that your rights under the GPL won't be arbitrarily terminated. It's a classic binding exchange of promises. One of those promises is a copyright license, but that doesn't mean that we stop analyzing the GPL there.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
When you convey a copy of a covered work, you may at your option remove any additional permissions from that copy, or from any part of it. (Additional permissions may be written to require their own removal in certain cases when you modify the work.) You may place additional permissions on material, added by you to a covered work, for which you have or can give appropriate copyright permission.
LedgerSMB: Open source Accounting/ERP
... what impact would that have on the American DMCA?
And why has this person not threatened to use the DMCA to force those who are not properly attributing that fellows work into complying with the license?
Even better question: Why was that idiot using an Artistic License" instead of the GPL?
The fact that people actually take time to post such lengthy chunks of junk really have me baffled. Don't they have anything else to do?
Care to cite an example of that?
Contract law is not generally applicable to a simple GPL dispute as there is nothing to dispute; plead either the license or copyright infringement. There are certainly edge cases and semantics but for the most part, thinking about the GPL as a contract would be plain wrong.
Please note that due the the methadology emploied by the Groklaw site by both the owner and the qualified people that post, is that they back up their opinions and stated facts of law with full refrences includiing in some cases links to the original documents.
It is an exccelent place to start to get a full understandig of the issues involved.
Undetectable Steganography? Yep, there's an app fo
Are you sure about the GPL not being tested in a US court? Groklaw says this, in the matter of Wallace v. FSF:
2 01540127
"So, the end result is, the GPL went to court, and the judge not only upheld it, he said this:
[T]he GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation."
http://www.groklaw.net/article.php?story=20060320
"I might have made a tactical error in not going to a physician for 20 years." -- Warren Zevon
Contract law does change a number of things, but it doesn't cause EULA's to vaporize.
No, it's copyright law that causes EULAs to vaporise. There's a specific exemption for copies made for the purpose of using software. This means you don't need permission from the copyright holder to install software, so you don't need to agree to anything.
I read a PR spam that was going around about this very case. It seems interesting and worth watching, but the folks involved definitely want to trump this up to more than it is. The decision that will allegedly impact the entire open source industry is really just a ruling that the plaintiffs (the open source guys) can't get a preliminary injunction against the defendant. If you're a small business owner I would think you would see this as a good thing. If everybody who filed a lawsuit against a small business could get a preliminary injunction that forces the company to completely cease operations before the trial has even started, small software developers would cease to exist.
Breakfast served all day!
So far, looks like they're losing. Badly. Even though this Katzer person admitted to removing copyright notices, author names, etc, the judge has basically said that since copyright doesn't apply & only contact does, and since the software is "free" there are no $ damages, there's nothing that can be done.
A contract requires the informed consent of both parties entering the agreement. It has yet to be proven in a court of law that clicking an 'OK' button equates to informed consent, especially if the terms of the "agreement" are not presented prior to the purchase.
... Many courts that have analyzed these issues have ruled that clickwrap and shrinkwrap agreements are indeed binding, even against consumers. The courts have emphasized that sellers are entitled to offer a product on any terms they wish, and that shrinkwrap and clickswrap are the most efficient methods of including complicated terms in a small space. Think before you click!(8)
... The plaintiffs clicked to download. If, instead of downloading they had scrolled further down, they would have seen an invitation to 'review and agree to the terms of the Netscape SmartDownload software license agreement.' ... Receipt of a physical document containing contract terms or notice thereof is frequently deemed, in the world of paper transactions, a sufficient circumstance to place the offeree on inquiry notice of those terms. These principles apply equally to the emergent world of online product delivery, pop-up screens, hyperlinked pages, clickwrap licensing, scrollable documents ... We are not persuaded that a reasonably prudent oferee in these circumstances would have known of the existence of license terms. Plaintiffs were responding to an offer that did not carry an immediately visible notice of the existence of license terms or require unambiguous manifestation of assent to those terms. ... a reference to the existence of license terms on a submerged screen is not sufficient to place consumers in inquiry or consctrucive notice of those terms."
Clickwrap and Shrinkwrap are enforcible contracts. From 2007, Beatty and Samuelson, Business Law and the Legal Environment: Standard Edition, 4th edition, Chapter 11 - Agreements, p. 265:
"Cyberlaw. Clickwraps and Shrinkwraps.
(8) ProCD, Inc. v. Zeidenbert, 86 F3d 1447 (7th Cir. 1996), is the leading case to enforce shrinkwrap agreements (and, by extension, clickwraps). Klocek v. Gateway, 104 F. Supp. 1332 (D. Kan, 2000) is one of the few cases to reject such contracts. Klocek, however, was dismissed for failure to reach the federal court $75,000 jurisdic tional level."
As you suggest submerged agreements are a problem, however making the terms visible before clicking is valid and clicking "I Agree" is valid. The following shows why the license is shown first on many download pages, or by installers, it corrects the "submerging" defect. And why "I Agree" rather than "OK" is used, it corrects the ambiguous defect. Not activating "I Agree" until after all of the agreement has scrolled by is a nice addition. P. 266:
"Specht v. Netscape Communications Corporation", 306 F.3d 17, Second Circuit Court of Appeals, 2002.
Apologies for the typos.
IANAL, but you may want to look up "contract of adhesion" in a law dictionary and do some reading into questions of how it impacts consumer product law.
Secondly, the actual laws on the books (in the US at least) seem to make an exception relating to infringement for the purpose of installing software, so there seems to be no indication that the issue is one of copyright infringement at all.
LedgerSMB: Open source Accounting/ERP
IANAL, but I generally agree with your assessment as far as you take it. But are they as enforceable as negotiated contracts? Are they subject to ductrines of adhesion? Are they more limited than might appear in your discussion?
For example, if I negotiate a contract with you and it has an arbitrarion clause which we both agree to, is that different than an adhesion contract relating to a service or product where there is no possibility of negotiation?
LedgerSMB: Open source Accounting/ERP
I'm not in the least calling into question PJ's methodology or expertise (although it would be quite difficult to argue that she doesn't have a bias that sometimes enters into her work).
Anyway, I responded as I did because I felt you were being smug and/or lazy ("Please . . . get educated," you wrote). If this is a misperception on my part, accept my apology for over-reacting. My basic point still stands, however, and the original comment (by frankenheinz) about contracts and licenses is a plausible interpretation of the law in the U.S. There was nothing ingnorant in frankenheinz's comment
Perhaps a shortcoming of the legal system is that there can be various and even conflicting interpretations (although it could be equally argued that this is a strength). However, it's part of the basic foundation of the legal system; everyday lawyers are arguing before courts as to what a law actually means and how that law should be applied. Personally, I think it's a pretty good system for its flexibility. Not perfect by any means, but on the whole it yields more good results than bad ones.
I'm often a jerk on slashdot. Sometimes it is uncalled for. If this was one of those times, please accept my apology. However, if it was called for, then . . . . Fuck you!! =) j/k
It's not offtopic, dumbass. It's orthogonal.
Ok. IANAL, of course. Read the following sections:
1) Source code, definition of "Corresponding Source"
2) Section 6, opening paragraph, requirement that Corresponding Source as a whole is licensed under the GPL v3.
3) Section 7, first two paragraphs, and final paragraph. THese provide that any other software licenses other than the GPL v3 can be removed from any part of the Corresponding Source in the process of conveyance. Furthermore, any license exceptions such as a linking exception can be removed from your code by anyone who merely conveys the sotware.
This leads me to conclude two things:
1) The GPL v3 prohibits linking to any component under any BSD license since one cannot grant permission to remove the BSDL from the code distributed verbatem and also
2) THe GPL v3 allows removal of any linking exceptions one grants by anyone who merely distributes the software and therefore has no copyright control over any part.
I can see how the antitivoization clauses might also be copyright misuse.
LedgerSMB: Open source Accounting/ERP
Licenses only do things that they actually say, not things that someone hopes they say.
Not always. Judges should and often do attempt to interpret and infer the original intents of the author of the license. Even laws are sometimes vague, broad, or even ambiguous, and in such cases they cannot be taken literally. They need to be sensibly interpreted.
GPL HAS been tested in US court. Sadly, I forget the case name, but a guy who wanted to
do his own opsys claimed all sorts of stupid stuff, like giving away linux amounted
to "dumping" and other illegal, non competitive behavior. GPL won just fine, thanks.
Of course, had this guy won, M$ would also have been in trouble. You can ask somebody
over at Groklaw.org about it -- they covered the case a bit.
Would you mind pointing out which of the 712 links in http://www.groklaw.net/search.php?query=license+co ntract+&keyType=all&datestart=&dateend=&topic=0&ty pe=all&author=0&mode=search is the most relevant to learning the difference between a license and a contract? By your vigorous defense of Groklaw, I assume you have a particular page in mind when you write. I'm trying to "get educated", but your lazy "stop talking out your ass, you ignorant n00b" attitude leaves me quite adrift.
I'm sure it's copypasta.
For example, if I negotiate a contract with you and it has an arbitrarion clause which we both agree to, is that different than an adhesion contract relating to a service or product where there is no possibility of negotiation?
... While high awards may be appealed by either party, common experience suggest that it is unlikely that an insured would appeal such an award. It is the insurer who, generally, would be dissatisfied with a high award. The policy provision thus presents an 'escape hatch' to the insurer for avaoidance of high arbitration awards, whether or not the award was fair and reasonable. However, the insured, who would tend to be dissatisfied with a a low award, is barred from appealing such an award. ... The Chancery Court was correct in stricking this unconscionable clause."
The textbook that I referred to seems to indicate that unconscionable terms are a bigger issue for adhesion contracts, a power and sophistication imbalance often exist. The issue of arbitration is used as an example, in the following case the contract stated that both parties must accept low awards but either party may appeal high awards. Worldwide Insurance v. Klopp. 603 A.2d 1992 Del. Lexis 13. Supreme Court Deleware 1992:
"The public policy of this State favors the resolution of disputes through arbitration. An insurance policy which provides for arbitration as its primary mechanism for dispute resolution is thus enforceable.
If both parties negotiated a deal then there may still be an economic duress argument. 2007, Beatty and Samuelson, p. 325: "How do we distinguish economic duress from successful business tactics? Courts have created no single rule to answer the question, but they do focus on certain issues. In analyzing a claim of economic duress, courts look at these factors:
- Acts that have no legitimate business purpose.
- Greatly unequal bargaining power.
- An unnaturally large gain for one party.
- Financial distress to one party.
Back to my original point (IANAL). I suspect a clause in an adhesion contract which says something to the effect that "you may not publish any performance comparisons between our product and others" seems suspect on the surface. Whether or not any of a number of doctrines may be used to attack such a contract provision is not something I can clearly answer myself. However, it does seem likely to me that such a clause could be attacked because (meaning this is the red flag that I see) it seems to restrain a user's behavior beyond ways which are reasonable in a free market, and that the user doesn't really have a choice in the matter. Again, it seems that in such a situation *some* sort of attack should be possible.
Again, this means going to court in order to publish your benchmark. It means going up against Oracle's attourneys, who may know that although they might lose on merits alone, that they may be able to slow the process down and force a settlement that leaves the provision intact generally. It means that one might be subject to an injunction preventing you from publishing the comparison during the trial. And it means a lot of money and time down the drain. Which means that nobody is likely to do this just so they can publish a benchmark or performance study.
My own feeling here is that the question of the law probably doesn't matter at the moment. My own (non-law) buisness rule is that a contract or license means what the other party says it means unless or until it is worth going to court over. Thus a lot of contracts are enforceable not because they have the clout of the *law* on their side but because the have the clout of a *lawyer* on their side.
LedgerSMB: Open source Accounting/ERP
There's a popular idea that when anything on a public forum like Slashdot might be harmful to certain parties, this sort of sexual blather gets put in the thread so that porn and obscenity filters keep it out of many hands. Microsoft is the usual suspect, and the parent of the sex blather is questioning the effects on MS's EULA.
I'm not drawing any conclusions here, and I don't think anyone should at this point. It is an interesting theory, and this would be a prime example if it's true.
"you may not publish any performance comparisons between our product and others" seems suspect on the surface. ... However, it does seem likely to me that such a clause could be attacked because (meaning this is the red flag that I see) it seems to restrain a user's behavior beyond ways which are reasonable in a free market, ...
... and that the user doesn't really have a choice in the matter.
Looking at the factors that the courts consider:
- Acts that have no legitimate business purpose.
In the context of pre-release, preventing comparisons serves a valid business purpose. Engineering samples, beta, etc may not properly represent the finished product. In general, preventing comparisons should be perfectly valid if there is "consideration", if the customer gets something in return. For example, special access to info and products. It is perfectly valid for a contract to restrict the flow of information.
- Greatly unequal bargaining power.
"Consideration" again, if there is a reasonable exchange the unequal power becomes moot.
- An unnaturally large gain for one party.
- Financial distress to one party.
These don't seem to be an issue.
Adhesion contracts can be perfectly valid, there is nothing inherently wrong with a take it or leave it position. Not being allowed to publish benchmarks seems pretty far from an unconscionable requirement (except when it intersects with public policy, whistleblowing for example), and pretty close to a valid business tactic (especially in the pre-release context).
I understand that, but someone had to write it before it could be copied.
Wouldn't that be the best place to dissect this issue?
Better still, wouldn't this issue be wholly more appropriate to Groklaw than the current bent of politics and advocacy (ie, ODT vs OXML) that seems to be creeping in there? Given the paper legalese that's already been flying around (as listed on the JMRI site) -- not to mention the significance of the ruling in attacking a popular FOSS license -- I know I could benefit from this dispute being given the 'Groklaw treatment'.
So far, it offers not even a mention in passing....
- Evan
In the context of pre-release, preventing comparisons serves a valid business purpose. Engineering samples, beta, etc may not properly represent the finished product. In general, preventing comparisons should be perfectly valid if there is "consideration", if the customer gets something in return. For example, special access to info and products. It is perfectly valid for a contract to restrict the flow of information.[emphasis mine] I would agree that such clauses are not clearly prohibited in your list of criteria, but this one is arguable at least by your post. For example, in this case, you are dealing with a large public release, and it is a condition of access to the basic product of the company that they don't publish performance comparisons. In short your specific examples don't apply to this one.
I do a lot of db work in the FOSS world. I could see some additional arguments for legitimate business interests (truth in marketing) as well as arguements that despite these interests, the contract as generally enforced does not meet them and serves only ends beyond those which are legitimate (preventing questioning of one's own statements in particular in areas such as performance).
But again, because it is not obviously invalid, how much do you want to spend on it? How many months or years? How many thousands of dollars?
LedgerSMB: Open source Accounting/ERP