Yet another wannabe lawer...

Posted Sep 9, 2011 22:48 UTC (Fri) by khim (subscriber, #9252)
Parent article: FSF's Star Turn in the Android FUDathon (LinuxInsider)

It's funny how often people forget that law is "squishy" and court does not just interpret words literally. Intent is important, too. It's even funnier when people decide to recall that law is squishy but then decide that it'll only be squished in their direction.

It's true that "standard form contracts" are limited in what they can do ("reasonable expectations" and all that), but the the question arises: is it reasonable to expect that repeated breaches of the license will not terminate your redistribution rights? This is certainly what'll happen with proprietary license, after all. It may be debated that technical accidental breach of contract should not trigger permanent revocation of rights, but to say that your brand-new, ready to use, fresh license is just download away no matter what you do... it just does not sound reasonable.

The law basically says: if the term of contract are so onerous that "that no reasonable person would make them and no fair and honest person would accept them" - then these terms are null and void. But the terms "no new license till past transgressions are resolved" are accepted so often (in the proprietary world) that it's very hard to argue that they are "not reasonable". And yes, if past transgressions are serious enough then the license can be terminated permanently.

You can not talk about "contracts of adhesion" in once sentence and then about "after all, it is a license, not a contract" in another.

P.S. The fact that article is full of FUD about GPLv3 does not help, of course. Here is all the rebuttal you need. Ready-to-be-GPLv3-compliant (you can install modified version without even voiding [the hardware] warranty) and FCC compliant, too...

Yet another wannabe lawer...

Posted Sep 12, 2011 6:55 UTC (Mon) by PO8 (guest, #41661) [Link] (1 responses)

"...court does not just interpret words literally. Intent is important, too."

IANAL, but no, in the US at least that isn't generally how contract law works. The judge or jury is charged to determine the intent of a contract or license based solely on the wording of the document itself. This is why bad drafting can have such serious consequences: even if *both parties* to an agreement concur that their intent is different from a judge's reading of the document, the judge may well ignore them.

Yet another wannabe lawer...

Posted Sep 13, 2011 12:02 UTC (Tue) by dbruce (guest, #57948) [Link]

"The judge or jury is charged to determine the intent of a contract or license based solely on the wording of the document itself."

True, but intent does have a major effect on the arguments that the party's lawyers are going to make in a trial.

Or to the point - if the author of a GPL-licensed program says "yes, you really can just download another license with another copy and continue to distribute my work even though you used to be out of compliance", it is going to have a major effect.