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Re: Sun Java available from non-free

On Tuesday 06 June 2006 09:00, Mike Bird wrote:
> Hi Thijs,
> The DLJ is governed by California law and controlling US federal
> law [DLJ (14)].  Under the explicit terms [DLJ (14)] and under
> the parole evidence rule the judge cannot consider anything other
> than the literal pedantic terms of the contract and subsequent
> written amendments signed by both parties.
> Evidence of intent may be introduced where the contract is
> ambiguous.  You have not made any showing that the contract is
> ambiguous with respect to indemnification, and thus evidence of
> intent is inadmissible.
> The personal situations of the parties is inadmissible except
> where the door is opened by the contract itself or by relevant
> legislation.  You have made no showing that the door has been
> opened, and thus evidence of personal situations is inadmissible.
> Judges have broad discretion in some matters:  the orderly
> conduct of proceedings, contempt, evidentiary rulings, ...
> However judges literally and pedantically follow the
> constitutions, statutes, ordinances, regulations, licenses,
> and contracts.  If there is any variance from this it is
> when a party fails to timely raise a relevant point in
> argument.
> --Mike Bird

Mike, you know all the fancy buzz words, so you're clearly know something on 
the topic, but you're being a bit too literal with your representations 
of "the way things are."  First off, you're applying contract law to a 
license.  Thanks to the Copyright Act the two are not necessary one in the 
same.  There are a host of equitable principles that must be considered when 
considering a license.  Second, this is a license/contract of adhesion, since 
there is no negotiation, take it or leave it style.  Which means that Sun 
CANNOT disregard its statements as to how it interprets these terms.  It can 
place all the warnings it wants on its FAQ or in the license and scream at 
the court about the parole evidence rule, but it's not going to the change 
the facts that IF they change their stance from what it is now to some 
hypothetical evil the court will rule against them.  That's what reliance is 
all about, and in the case of contracts of adhesion, the party trying to 
defeat reliance has a very high burden.  Better yet, if they say one thing 
while believing another, you've got an action of fraud against them!

The world of modern software licensing has changed everything we know about 
common law contracts and there is simply no good reason to hold on to 
absolutest rules.

Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Services & Activities Fee Committee Chair 
w: http://blog.probonogeek.org/

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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