[OSM-legal-talk] Click-through

[Jochen Topf]

On Fri, Oct 17, 2008 at 09:07:12PM +0200, Frederik Ramm wrote:
> Jochen Topf wrote:
> > If we create a license that is not
> > enforcable, why bother?
> 
> This issue - contract only works where parties know about the contract 
> before - has arisen in previous discussions. The usual retort went like 
> this:
> 
> (1) you don't *know* that it is not enforceable, you just *assume* - 
> court cases like this are few and far between;

A contract by definition is something you can only enter into
voluntarily. So I know that it is not enforcable unless both parties
have agreed. It might still be not enforcable if both parties have
agreed (for any number of reasons), but if there is no agreement, there
is no contract.

Wikipedia says "A contract is an exchange of promises between two or
more parties to do or refrain from doing an act which is enforceable in
a court of law."

The only discussion could be around the question: Can the usage of the
data in itself be seen as agreement to the contract, or do we need some
kind of positive action (like a click-through). Judging from the many
click-through licenses used everywhere most legal minds seem to think
that you need this...

> (2) even having a non-enforceable license that basically says what we 
> want is suitable as some kind of ethics/morality stick we can use to 
> beat people who misbehave, even if they misbehave within the envelope of 
> the law.
> 
> Of course, once you go down (2) the question arises, why do we need a 
> lawyer at all, why not write down a "brief brief" and be done with it.

Exactly.

Jochen
-- 
Jochen Topf  jochen at remote.org  http://www.remote.org/jochen/  +49-721-388298