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Re: three send back changes clauses

From: John Galt <galt@inconnu.isu.edu>
Subject: Re: three send back changes clauses
Date: Sun, 27 May 2001 21:13:21 -0600 (MDT)

> >> effort".  Basically, the weasel words come to the rescue again.
> >
> >It seems like you're interpreting the weasel words to make the whole
> >clause have no practical effect.  I don't think that we can really do
> >that.  You're saying that if my boss tells me not to contribute back
> >changes, that is enough to foil "best effort".  What if it is my wife?
> >What about the voices I hear in my head?  I still think that the
> >package can't go in main.
> Best effort has traditionally been seen by the courts as exactly that.
> Triple-A Baseball Club Associates v. Northeastern Baseball, Inc., 832
> F.2d 214, 225 (1st Cir. 1987).
> General Dynamics Corp. v. United States, 671 F.2d 474, 480 (Ct. Cl.1982).

Do you have an online reference handy?  I don't have easy access to a
law library.

> These citations were from the discussion of law in _Hughes v NASA_
> http://www.contracts.ogc.doc.gov/fedcl/opinions/2000opin/91-1032C.html
> Hughes v NASA was rather unique, a "best effort" contract in breach.  This
> came from the fact that NASA repudiated the contract in 1986 or
> thereabouts.

This case supports my point.  NASA was told by it's "boss", Ronald
Reagan, to give low priority to commercial launches.  The judge
decided that NASA couldn't use that as as excuse to not launch Hughes'
satellites.  This is analagous to a boss in a company telling their
underlings not to reveal what they do to anyone, even though it may be
quite noteworthy.

Also, the court specifically said that "best effort"=="act in good
faith".  I don't see how you say that someone who uses the software
but has no intention of ever contributing back changes (because their
boss told them not to) is acting in good faith.  The software should
still not go in main.

> http://www.icann.org/registrars/register.com-verio/order-08dec00.htm
> Here's a nice one: Verio was supposed to use it's best efforts to purge
> all WHOIS information out of it's databases :)  I'm guessing they got rid
> of three emails...

I'm not sure what this case has to do with the current discussion.  I
couldn't find any mention there of what "best effort" means.

Walter Landry

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