Enforcing the Terms of a Contract

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Proving breach of contract has been the subject of literally millions of lawsuits. It would be impossible to summarize that body of case law and statutes effectively in this book. Indeed, contract enforcement depends in some ways on the jurisdiction in which the case is brought, and most such cases are fact-specific. I will list only the major rules that apply in many jurisdictions:

  • Courts will generally try to give effect to the written contract of the parties. Parties are allowed to agree to almost anything as long as it is not against public policy.

  • Aggrieved litigants are not allowed to back out of contracts they made simply because the terms are no longer to their liking. It usually doesn't generate sympathy if you complain after the fact that a contract you entered with your eyes open is now unfair.

  • There are complex rules for resolving ambiguities of contract language, and the courts will often try to reword such ambiguities to make the contract enforceable. If the ambiguity is so profound that the parties probably didn't understand what they were agreeing to, the entire contract may become void. (In the absence of a contract, remember, copyright and patent laws remain in effect; a party who acts under authority of a void license is merely an infringer.)

  • There are complex rules for filling gaps in contracts where the agreement is silent as to specific matters. Commercial relationships among countries have led to the development of consistent laws relating to the sale of goods. Whether software is goods depends on the laws in your jurisdiction. In many cases, though, courts will make an analogy between software licenses and contracts for the sale of goods, thereby developing case law where statutory law about software isn't complete.

  • Contract terminology that is not defined will often be given its meaning as a term of art. In complex cases, courts may rely on expert witnesses to help them determine the effect of specific contract language. Among the terms of art relevant to software licenses are collective work, derivative work, copy, distribution, file, and module . Courts will apply case law and statutory interpretation processes to determine the meanings of such terms and their effects on specific licenses and software.

  • Commercial parties are generally assumed to be sophisticated about the contracts they enter; they will find it difficult to argue that they didn't really know what they were agreeing to. Individual consumers, on the other hand, are not sophisticated; they probably didn't even read or understand the consequences of software licenses they "agreed" to. Courts may protect individual consumers from unfair license conditions where they wouldn't bother to protect a sophisticated company whose lawyers reviewed (or should have reviewed) the licenses.

  • Courts sometimes refuse to enforce specific provisions of contracts against ordinary consumers, particularly if those provisions are excessive burdens on unsophisticated licensees. For example, arbitration clauses, broad warranty and liability disclaimers, and biased selection of jurisdiction, venue , and governing law may not be enforced against naive licensees . No court case has yet tested whether a reciprocity provision can be asserted against an unsophisticated licensee, although big software companies can be presumed to know what those provisions mean.

I recognize that these guidelines don't provide much real guidance for anyone who is considering suing for breach of contract or who fears having to defend against such a lawsuit. Fortunately, the open source community is not particularly litigious. Licensors give away so many copyright and patent rights that there's very little left of value worth suing over. And licensees obtain almost everything they need to profit from the software, so there's very little incentive to sue. Without damages, lawsuits aren't needed.

Nevertheless, licensees should be diligent in respecting the intellectual property rights of contributors. Honor all the terms and conditions. Little things often matter deeply to open source licensors. For example, if a license requires that you make available a copy of the license or of the source code when you distribute the software or its derivative works, do so. The open source community generally believes that such license terms are really worth fighting over, so avoid such fights by obeying the license terms and conditions.

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Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

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