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

Adrien Lamothe alamozzz at yahoo.com
Wed Jan 11 10:59:18 PST 2006

Quoting Rick Moen (rick at linuxmafia.com):

>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.

Including the reason that the clause is illegal. We agree on this point.

>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.

A contract is indeed an instrument that, in some instances, requires one
or more parties to sign away rights. When it comes to purchasing a product,
one right that a court is almost certain not to violate is a consumer's
right to enjoy use of the product in a manner consistent with normal useage.
In the world of computer operating systems, it is normal, and expected, for
a consumer to benchmark the operating system. Benchmarking the operating
system, especially for execution of software important to the customer,
is part of the normal operational procedure inherent in normal useage of
the product.

The only apparent reason a software manufacturer would not want a customer
to benchmark an operating system, is fear of competition. I'm sorry, but
fear of competition just doesn't cut the mustard in a court of law, especially
when it infringes on a customer's right to normal useage of their property.

I haven't "talked around" anything, apparently you just haven't considered
what has been said. That's O.K., it happens.

>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.




"I'm not O.K., you're not O.K., but that's O.K."

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