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

Rick Moen rick at linuxmafia.com
Mon Jan 9 21:41:36 PST 2006

Quoting Adrien Lamothe (alamozzz at yahoo.com):

> Actually, just the opposite usually happens. Courts will not allow people
> to sign away their rights. That is why most contracts contain what is
> called a "severability" clause. 

Whoa, there.  Not so fast, pard'.  Your fallacy lies in the underlined
text, examined below.

> A severability clause states to the effect that "in the event any
> portion of this contract is deemed illegal, void or unenforceable,
> such judgement does not effect the remaining portions of this
> contract, and such portions remain in full effect."

Contracts _do_ indeed tend to have severability clauses, but it's NOT
because the courts don't allow people to sign away their rights:  It's 
so that, if any clause, for any reason, gets voided (e.g., patent
violation, violation of state regulations and statutes, etc.), it's
nonetheless likely the court will allow the others to still be enforced
-- by signalling _to_ the court that the parties thus intend and wish.

> One of the basic principles of contract law is to write a contract
> that is as outrageous as possible, claiming rights beyond what is
> legal or reasonable, the rationale being that by exceeding the limits
> you will therefore be fully protected up to the limits allowed by law.

That is (all too often) true.  But what is _not_ true is your original
claim that disallowing benchmarking via a product licence is illegal and
unenforceable -- nor your current, broader claim that the courts don't
allow people to sign away their rights.  You have talked around those
claims, and cited legal mechanisms that aren't actually relevant to them,
but you have not supported them.

In fact -- since you mention it -- ANY contract you sign, by definition
of the term "contract", inherently gives up (signs away) some right you
already had going in.  (Note that property, be it tangible, abstract,
real estate, or other, _is_ a bundle of rights.)  That deliberate
foregoing of just rights that you already have in hand is what
constitutes the required element of "consideration", without which no
contract can ever be formed in the first place.

In case anyone is curious, and with the previously cited proviso that
IANAL, here are some old notes from business law class:

"Contract Elements" on http://linuxmafia.com/kb/Licensing_and_Law/

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