[sf-lug] Rick's explanation of his internet setup.

Rick Moen rick at linuxmafia.com
Fri Jan 6 22:18:49 PST 2006

Quoting Adrien Lamothe (alamozzz at yahoo.com):

> >I believe you were saying that disallowing software benchmarking via a
> >product EULA is illegal and unenforceable.  I therefore would like to
> >see a cite of the controlling law (statute or caselaw), since I can't
> >find any.  You must have had some reason to think that; all I did was
> >ask you to cite that reason.
> You won't find any statute that says "it is O.K. to benchmark software 
> you have purchased." 

I was hoping you were aware of a civil judgement (in a lawsuit) where a
company had attempted to enforce such a provision, asserting the tort of
contract breach, but then lost, through some judge declaring them
"illegal and unenforceable".

> Let's say I buy some milk at a grocery store, and they make me sign an
> agreement to the effect that I will not tell other people my opinion of
> the milk, and also not to send a sample of that milk to a laboratory for
> analysis. I won't find any statutes that tell me it is O.K. to critique
> the milk or have it analyzed, because I'm free to do just about anything
> with the milk, I own it.

Much as you indeed own that milk, there are hundred of years of
precedent for attaching strings to contracts:  As long as the subject
matter of the contract is not itself illegal[1], the courts have allowed
competent adults[2] to sign away almost all rights, if they're reckless
and don't carefully watch what they agree to.[3]

> If the grocery store wants to try enforcing that agreement, good luck
> to them, they'll get laughed out of court. The Novell situation is
> identical.

What I know of business law, this claim is mistaken.  People sign
contract that limit the scope of their right to speak, all the time, 
e.g., contracts pursuant to employment.  Even my contracting work
entails implied covenants of good-faith and fair dealing, according to
which I must act to protect my clients' interests.  I could get sued for 
torts if I were to violate those covenants by blabbing about them in 

Therefore (although I'm certainly not a lawyer, and therefore cannot and
do not advise people on their particular legal situations), I always 
advise people in _general terms_ to pay really close attention to what
contracts they agree to, and assume they're to be taken seriously except
where you know they're toothless for some external reason.

> Automotive magazines borrow or buy cars so they can test and benchmark
> them. Reviewers benchmark computer hardware and software almost daily,
> and publish the results. Benchmarking a product you own is legal,
> period.

Again, I know of no reason to think this is true, and plenty to think
otherwise.  It it _were_ true, I expect I'd have found caselaw to that 
effect, and I found none.

> While on the subject, this is a good time to mention those mysterious
> gremlins known as "market forces." By affixing such an onerous
> condition to their license agreement, Novell will cause users to
> really question what is going on, and leave a negative impression.

I certainly hope so.  Licence terms purporting to ban benchmarking are 
evil, and really should not be put up with.

[1] For example, no contract terms you sign, in an otherwise valid
contract, can be forced against you to sell yourself into slavery, or 
to perform any other illegal act.  For example, in California contracts 
that purport to bar you from your own trade or profession (non-competes)
are completely unenforceable by statute, as are proprietary invention
agreements to the extent of whatever you create with your own resources
on your own time.  Although very common, those agreements are deceptive.
And yes, I _can_ give you citations of the relevant code sections.

[2] Popular misconceptions to the contrary notwithstanding, minors _are_
allowed to enter into contracts, but can elect to unilaterally void any
such contracts, if they wish, immediately upon reaching the age of
majority.  One exception is contracts concerning real estate, which 
are enforceable even against minors.

[3] There are a few safeguards in particular special areas, such as the 
statutory "cooling off period" following purchase of an automobile,
during which you can rescind your acceptance of the sales offer.

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