<div id="RTEContent">Quoting Rick Moen (firstname.lastname@example.org):<br><br>>Contracts _do_ indeed tend to have severability clauses, but it's NOT<br>>because the courts don't allow people to sign away their rights: It's <br>>so that, if any clause, for any reason, gets voided (e.g., patent<br> ^^^^^^^^^^^^^^<br>>violation, violation of state regulations and statutes, etc.), it's<br>>nonetheless likely the court will allow the others to still be enforced<br>>-- by signalling _to_ the court that the parties thus intend and wish.<br><br>Including the reason that the clause is illegal. We agree on this point.<br><br><br>>That is (all too often) true. But what is _not_ true is your original<br>>claim that disallowing benchmarking via a product licence is illegal
and<br> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^<br>>unenforceable -- nor your current, broader claim that the courts don't<br>>allow people to sign away their rights. You have talked around those<br> ^^^^^^^^^^^^^^^^^^^^^^<br>>claims, and cited legal mechanisms that aren't actually relevant to <br>>them, but you have not supported them.<br><br>A contract is indeed an instrument that, in some instances, requires one<br>or more parties to sign away rights. When it comes to purchasing a product,<br>one right that a court is almost certain not to violate is a consumer's<br>right to enjoy use of the product in a manner consistent with normal useage.<br>In the world of computer operating systems, it is normal, and expected, for<br>a consumer to benchmark the operating system. Benchmarking the
operating<br>system, especially for execution of software important to the customer,<br>is part of the normal operational procedure inherent in normal useage of<br>the product.<br><br>The only apparent reason a software manufacturer would not want a customer<br>to benchmark an operating system, is fear of competition. I'm sorry, but<br>fear of competition just doesn't cut the mustard in a court of law, especially<br>when it infringes on a customer's right to normal useage of their property.<br><br>I haven't "talked around" anything, apparently you just haven't considered<br>what has been said. That's O.K., it happens.<br><br><br>>In fact -- since you mention it -- ANY contract you sign, by definition<br>>of the term "contract", inherently gives up (signs away) some right you<br>
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^<br>>already had going in. (Note that property, be it tangible, abstract,<br> ^^^^^^^^^^^^^^^^^^^^<br>>real estate, or other, _is_ a bundle of rights.) That deliberate<br>>foregoing of just rights that you already have in hand is what<br>>constitutes the required element of "consideration", without which no<br>>contract can ever be formed in the first place.<br><br>Untrue.<br><br><br>Cheers,<br><br>Adrien<br><br>"I'm not O.K., you're not O.K., but that's O.K."<br><br><br></div><p>
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