RE: FWD: Analog licence violates DFSG
IMHO the problems with legality clauses in contracts can be summarized in
(Disclaimer - this isn't legal advice, get yer own durn lawyer, yadda yadda
yadda. See below.)
1. Not all countries adhere to the common law (mostly just the UK & its
former colonies, like US, Canada, Australia, etc.). I do not know enough
about civil law jurisdictions to make a definitive statement about their
contract laws. But I would guess the voidness or voidability of a contract
on grounds of illegality or impossibility cannot be taken for granted in all
such jurisdictions. Note also the distinction between "void" and
"voidable" - void is always unenforceable, whereas voidable is binding on
both parties until one takes legal action to void it - jurisdictions might
vary on which applies under what circumstances. Then there are the
equitable doctrines like "estoppel," "laches" and "unclean hands" which
might also overturn perfectly "legal" contracts....
2. Most of these clauses do not mention a specific jurisdiction's laws -
thus they could be construed as void for vagueness (and if you don't have a
severability clause - then the whole contract could be voided).
Alternately, those that do invoke a specific jurisdiction's laws, could be
judged as inapplicable or unenforceable in another jurisdiction's courts.
Do you really think (for example) China, Iraq or Libya cares how a Virginia
state court would interpret UCITA (assuming they even care about UCITA at
3. Choice of law and choice of venue often get confused in these clauses (I
believe another poster in the thread already covered this fairly well).
Basically - choice of venue is hazardous at best. Choice of law should be
what we are discussing here.
4. There has also been some discussion about the differences (if any)
between contracts and licenses in past threads. I would only add that most
"free as in beer" licenses could conceivably be attacked under a "lack of
consideration" theory (what does the author get in return for your use of
the code? "egoboo" isn't a currency) - basically rendering the code as no
more than a gift, or entering the public domain. Of course, lack of
consideration is a pretty rare & difficult defense nowadays in the U.S., but
again, other jurisdictions might vary....
5. Even if everything you say is correct, then basically such clauses are
superflous, since local laws, treaties, etc. will already govern the
contract. Excess verbiage in a contract is usually to be avoided (unless
you are the lawyer getting paid by the hour or the word ;-P ).
BTW, IWALBIGIU (I was a lawyer but I gave it up). Currently on "inactive"
status - State Bar of Texas. (Yes it was voluntary, not for disciplinary
reasons or anything). Not Board Certified by the Texas State Board of Legal
Specialization. (They made me say that.) Caveat lector. ;-)
Eric R. Sherrill, WF Software Systems Engineer
Texas Instruments HFAB1 Automation Systems
Stafford, TX 77477-3006
From: John Galt [mailto:email@example.com]
Sent: Wednesday, September 13, 2000 3:11 PM
To: Henning Makholm
Cc: Brian Behlendorf; Joey Hess; firstname.lastname@example.org
Subject: Re: FWD: Analog licence violates DFSG
This has always been a stone in my craw: why should a "keep it
legal" clause make it non DFSG free? Contracts (licensing
agreements) may not cover illegal actions: a contract to perform an arson
is null and void regardless of the wording of the contract. So logically,
a contract that has a "keep it legal" clause is simply making explicit
what is already implicit in most every jurisdiction: the common law
idea that illegal actions void contracts. Logically, if a "keep it
legal" clause makes a license non DFSG free, under common law NO license
is DFSG free, since all contracts are voided once the law is broken. In
Henning's hypothetical, if the free country that the person escaped to
was a common law nation, the license was voided during the illegal act, so
they're up for copyright infringement no matter what (whether the
copyright holders know this or would do anything about this is another
matter). This is one of the few places where the DFSG fails the sanity
test, and the worst part about it is that there is nothing explicitly in
the DFSG that is the offender, just an interpretation. Either the DFSG is
overbroad or we should really do a stricter parsing of the DFSG.
On 13 Sep 2000, Henning Makholm wrote:
> Scripsit Brian Behlendorf <email@example.com>
> > On Tue, 12 Sep 2000, Joey Hess wrote:
> > > 1.Any action which is illegal under international or local law is
> > > forbidden by this licence. Any such action is the sole
> > > responsibility of the person committing the action.
> > > This provision of the licence blatently violates section 6 of
> > > the DFSG which states:
> > I don't follow; maybe I'm just being dense, but section 1 seems like a
> > no-op to me,
> It is not. Consider this scenario:
> A is a citizen of [insert your favorite evil oppresive police state].
> He happens to use this software to speek his mind against the
> government, is persecuted by the authorities but escapes narrowly to
> the free world. All is well, or not? No, because he not only broke
> the local laws, he also broke the license of the software. Then
> the author of the software might sue A for breach of contract, even
> though A is outside of the jurisdiction of the local laws that he
> broke originally.
> That certainly discriminates against fields of endeavor, namely
> against any field of endeavor that is illegal anywhere.
> > a cover-your-ass by the attorney who wrote it to cover the
> > case where a jurisdiction may decide that another clause in the license
> > contradicts some law somewhere, thus rendering the license void
> That is a possible explanation of what they *thought* they wrote,
> but is not what they *actually* wrote. A much better wording would
> | Licensee takes note that local laws may limit his exercise of the
> | rights granted by this License Agreement. Licensor does not
> | encourage the any activities that are against applicable local
> | law, and assumes no responsibility for any consequence of such
> | actions.
> This would be DFSG-free.
You have paid nothing for the preceding, therefore it's worth every penny
you've paid for it: if you did pay for it, might I remind you of the
immortal words of Phineas Taylor Barnum regarding fools and money?
Who is John Galt? firstname.lastname@example.org, that's who!
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