Robert J. MacG. Dawson wrote:
> Well, yes, I am assuming that it's enforceable. Any evidence that it
> isn't, apart
> from the fact that a lot of people would _like_ it not to be? Myself
> included, but cussing at a busted straight won't fill it.
> I'm not assuming that US law applies, though - except in the US, where
> I understand it does, mostly anyhow. Typically a software package sold
> outside the US has a locally-valid license agreement, and often
> includes an agreement not to resell outside that licensing domain.
Most of these contracts have never been tested in court against individuals. For
example, at first glance most look very dodgy under UK contract and consumer law. (I'm
not a lawyer so could be very wrong here).
> Actually, I think the model for US law here is the French _droit_moral_
> which has largely been accepted into EU law. Canada and the US have, if
> I understand correctly, weaker versions than apply in Europe, developed
> over the last ten or twenty years. France has had it since Napoleon.
I thought these cases were argued from constitutional rights such as freedom of
expression. In which case the relevant laws are from the European Court of Human
Rights (nothing to do with the EU). EU laws might not be relevant given that members
states don't necessarily implement them (and in some cases have opt-outs).
> A jury is capable of deciding anything, and in criminal law they may
> actually get away with it in the case of an acquittal. In civil law a
> perverse decision could be appealed to a higher level by either party -
> and probably would be if the losing side had deep pockets.
> After ten years of these surreal contracts, *has* any court in any
> major jurisdiction actually overturned any of the major provisions?
I think this precisely because they've probably never been tested (against
individuals). I think it is a moot point. Most individuals can't afford to go to
litigation. (OTOH most companies couldn't afford to prosecute individuals for minor
copyright infringements - for PR reasons and because the cost of losing would be pretty
nasty).
Thom
=================================================================
Instructions for joining and leaving this list and remarks about
the problem of INAPPROPRIATE MESSAGES are available at
http://jse.stat.ncsu.edu/
=================================================================
