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Author Topic: Are Creative Commons Licenses Even Enforceable?  (Read 7341 times)
app103
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« on: February 28, 2012, 10:51:11 AM »

A very well written article that raises a lot of questions about the enforceability of Creative Commons licenses. A good read and a lot to think about if you release works with a CC license or use CC licensed content.


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« Reply #1 on: February 28, 2012, 12:54:53 PM »

Most of the court cases I'm aware of sidestep the issue by asserting the owner of a work licensed under creative commons is protected by the fact they already hold traditional copyright on their work by virtue of the fact they've created it. The courts then go on to interpret the creative commons as a covenant that adds additional conditions to that of a standard copyright.

From what I can tell, the courts are basically ignoring creative commons attempts to go around the traditional copyright laws by saying you have a copyright whether you want it or not. So in that respect, it's sort of moot. Because the courts will only recognize creative works as being copyrighted or in the public domain. It's one or the other. There's no in-between. Period.

Where you might have a problem is if you try to play games with CC by arguing the person who released a work under CC waived their remedies under existing copyright laws, and then also argue that the terms of CC are unenforceable.

So far, in those cases that have made it to US courts, the answer is: "Not so." Unless a work was placed in public domain, it's protected (by default) under copyright law no matter what.

Which only makes sense since CC can be taken (at best) to be a license or contract because no governing law created or specifically recognizes CC.

You don't get to create your own public laws. That's the Legislature's prerogative. Corporations and interest groups wouldn't be spending millions annually to get our legislative middle-men to "sponsor" a bill unless they had to.

All you can do, as a private citizen or organization, is either get a new law passed; or set specific conditions for something under existing law. Contracts do that. So CC is really more a license or contract than it is a replacement for a copyright - which is a very different thing even though the protections are similar.

My attitude is it's smarter to file for standard copyright and then grant permission to use your works as you see fit. It's much easier than trying to create an alternative to an existing law. An alternative that, in and of itself, has no legal status.

Just my 2¢ Cool
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app103
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« Reply #2 on: February 28, 2012, 02:51:22 PM »

There are at least 3 situations that can arise with CC licensed works that can be quite disturbing.

1. A content creator releases something with a CC license, then dies. His family takes the website offline and then starts suing everyone that used his works, accusing them of copyright infringement. Copyright exists beyond the grave and the copyright now belongs to them. Unless you can prove you have a license to use the work, you will most likely lose the case and have to pay the family of the content creator. How will you prove you had that right if the site is gone? What if there is no copy of the site cached anywhere on the internet at the time you go to court? How do you, the content creator, ensure your family members won't be greedy after you die and go around suing the people you allowed to use your work? What can you do other than threaten to rise from the grave and haunt them for the rest of their lives if they do?

2. A content creator releases stuff with a CC-BY license. He blocks sites like archive.org from caching a copy of his site. He waits till people are using his content, then removes the CC-BY notice from his site and begins suing people for using his works. Or he changes the CC-BY to CC-BY-NC-ND and sues everyone that has used it commercially or remixed it into new works. If you can't prove the original CC-BY license, how do you defend yourself from a CC license troll?

3. You release a work but do not CC license it. Someone else comes along steals it, slaps a CC license on it, and puts it up on their site. Yes, you can sue him for doing that but what do you do about all those people now using your work that don't know the license was invalid?

I have actually had #3 happen to me. I posted a wallpaper on my website a long time ago. Someone came along and cropped it and included a portion of it in a scrapbooking kit, which they CC-BY-NC licensed.

After thinking about it for awhile, I came to the conclusion that even if I pursued the matter and forced the site owner to remove that piece from the kit, there was likely a lot of innocent people out there using it for purposes I never intended or allowed. In the end I chose to CC-BY license the original wallpaper and let it go. Unfortunately, anyone that had obtained the original kit won't be giving credit to me. They will give credit to the site they got the kit from. It's just a chunk of a silly wallpaper, no big deal to me. But what if it had been a book or music that someone else was being wrongly credited for instead of me or something I never intended to be distributed for free, something I created with intent to sell and profit from?

Here is the problem, the way I see it. There is no central database and repository (similar to the USPTO for patents) where content creators must register and deposit a copy of the works they intend to CC license. There are no registration numbers issued for each individual CC licensed work. There is no registration of use by anyone that wants to reuse a CC licensed work. Nobody is keeping track of all of this in one central location. Currently, anyone that wants to CC license a work just needs to slap a statement on it saying that it is. And anyone that wants to use it just needs to slap the same statement on it and link to the author.

If every content creator had to register each CC licensed work and get a registration number for it, then anyone that wanted to reuse that work would have a way of checking and verifying the license, which would continue to exist even after the creator's death. This would offer a lot more protection against scenarios 1 and 2. And if you had to register your reuse, it would offer a way for notifying those that used a work in good faith, in cases of scenario 3, that the license wasn't valid and they need to stop their use and/or distribution immediately.

Such a database and repository could also be good for the commons, if done right, by providing a searchable central archive of all CC licensed works, browsable by the public. It would encourage reuse far better than an author's obscure no-traffic website on some unspidered corner of the internet.
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« Reply #3 on: February 28, 2012, 06:33:16 PM »

There are at least 3 situations that can arise with CC licensed works that can be quite disturbing.

It seems to me that none of these problems is unique to a CC licensing situation.  If someone makes a 'retroactive' license change fraudulently or someone steals material and relicenses it downstream, the same problems would apply regardless of the original license (except for the WTFPL in situation 3, I guess).

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40hz
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« Reply #4 on: February 28, 2012, 06:44:45 PM »

You also can't rescind CC on something once you release it that way. That's spelled out in the CC terms. Like GPL - once you do it, it remains in effect in perpetuity. If that weren't the case, there'd be no point in having CC to begin with.

Which is also something to keep in mind if you're ever planning on selling a CC'd work to a publisher. Most will insist on an exclusive assignment of copyright and right to publish for the duration of your contract with them. If you've already CC'd your work, you can't grant them that. So think twice. CC is for people who genuinely want to share. It's not a marketing tool to get exposure or build a career with.


« Last Edit: February 28, 2012, 06:51:28 PM by 40hz » Logged

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app103
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« Reply #5 on: February 29, 2012, 02:46:54 AM »

Part of the problem is that a lot of people don't really understand what they are giving up when they slap a CC license on it. Some think it's a free copyright of some sort for people that can't afford to register their works with the copyright office. They don't know how any of it works. I can understand not understanding copyright, not understanding that things are automatically copyrighted at the moment of creation without the need to register your works.

But to slap a CC license on it without understanding that you are giving people the right to copy your work, thinking that somehow this actually protects your work from being copied is something I do not understand how so many people make that mistake. The license is quite clear about it in easy to understand language.

The CC license badge is not a cool looking decoration to stick on your site. It actually means something. You can not stick it on your site with the thoughts of "I need some cool looking buttons to fill up this empty space over here, hey this little black and white one looks really cute and matches my blog's template."

I have seen blogs with a CC-BY-SA license notice on them, giving people a right to copy the articles right along side a "Copyscape-do not copy" notice. That's a contradiction and shows a lack of understanding of CC licensing.

http://cranialsoup.blogsp...ons-and-authors-true.html

The blog I linked to in that post is a good example of what is wrong. Back then he had both notices on his blog, one right on top of the other. Today he has neither. Anyone that copied his articles back when he had the CC button on his site can not say "but he gave me permission with that CC license". You can't find any evidence of this anywhere on his website today. How do you prove you have that right if him or his heirs ever decide to sue you for republishing his work?

Requiring an author to register each work individually, every single article, and then publish the CC license registration number at the bottom of the article, will offer the opportunity to remind them each and every time what they are giving up, what others will be allowed to do with their works, and force them to be much more conscious of their decision.

Making them click an "I agree" button each and every time may make them stop and think. It will also make it impossible for them to change their minds later and attempt to take it back, protecting those that reuse the works of an idiot or CC license troll. Simply removing notices from your website and denying they were ever there won't work. The work will still be registered in the database.

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40hz
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« Reply #6 on: February 29, 2012, 05:17:07 AM »

The real problem with Creative Commons IMO is that they tried to keep it loose and on the honor system while at the same time trying to give it some legal 'teeth.'

That doesn't usually fly in a courtroom.

While I admire the motivation and the philosophy behind it, I can't help but think it's largely unworkable in its current incarnation. Mainly because it attempts to provide all the protections that a registry would provide - without actually maintaining a registry.

So whenever push comes to shove, it's extremely difficult to enforce CC provisions if a well-financed challenger stepped up to the plate over a given piece of creative work. And all assertions to the contrary on CC's website, it's still not a given. Most judges take a fairly dim view of assertions and appeals to justice in the absence of due diligence and an actual law to fall back on.

If CC wants to be taken seriously, it's going to have to get much more serious about what it's doing. Because right now it's more like a social club than a licensing organization. If you read the policy pages on the website, CC makes all sorts of claims and establishes a fairly specific set of rules. Then it negates it all with the following:

Quote
Can Creative Commons give legal advice about its licenses or other tools, or help with CC license enforcement?

No. Creative Commons is not a law firm and does not provide legal advice or legal services. CC is similar to a self-help service that offers free, form-based legal documents for others to use. CC also provides a jurisdiction database where you can compare the international licenses (formerly known at the "unported licenses") and ports (adaptations of the international licenses for particular jurisdictions), and a license versions page where you can compare the differences between license versions.

The CC wiki has a list of lawyers and organizations who have identified themselves as willing to provide information to others about CC licensing issues. However, please note that CC does not provide referral services, and does not endorse or recommend any person on that list. CC's Affiliate Network may also be a good resource for information about the licenses in a particular jurisdiction, though they should not be contacted for legal advice, at least in their capacity as a member of our CC Affiliate Network.

Who gives permission to use works offered under Creative Commons licenses?

Our licenses and legal tools are intended for use by anyone who holds copyright to the work. This is often, but not always, the creator or author. Creative Commons has no authority to grant permission on behalf of those persons, nor does CC manage those rights on behalf of others. CC offers licenses and tools to the public free of charge and does not require that creators or other rightsholders register with CC in order to apply a CC license to a work. This means that CC does not have special knowledge of who uses the licenses and for what purposes, nor does CC have a way to contact authors beyond means generally available to the public.

If you would like to obtain additional permissions to use the work beyond those granted by the license that has been applied, you should contact the rightsholder.

Does Creative Commons collect or track works licensed under a CC license?

CC does not collect content or track works except by way of example. CC builds technical tools that help the public search for and use works licensed under our licenses and other legal tools. For instance, the CC Network allows creators and users to express their support for Creative Commons, and also provides a tool for creators to authenticate ownership of their works. CC also offers tools like CC Search to help the public discover works offered under Creative Commons licenses on the Internet via CC-aware search engines and repositories.


So ok...there's no registration, no tracking, no support, no legal assistance...just a bunch of 'feel-good' stuff about sharing and being open. All very noble. And I mean that in all sincerity. But it hardly gives a CC license issuer much to work with if somebody violates those rules. Because without an underlying law specifically for CC, or an organization that keeps track of registrations - and attempts to enforce the rules - you're basically just issuing your own personal license. Except in this case, it was written for you by CC.

Not very good protection. More along the lines of using "moral suasion" as they (used to?) teach in management school.

And any good attorney will tell you if you have genuine faith in the notion of "moral suasion" when dealing with business, they have a bridge on Brooklyn they'd like to sell you.

« Last Edit: February 29, 2012, 08:30:51 AM by 40hz » Logged

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« Reply #7 on: March 01, 2012, 07:59:05 AM »

Interesting stuff.

From what I have seen, it's almost the other way around - everyone who "Shares" something that Infringes Copyright seems to be "Automatically ReLicensing" the original copyright into CC-BY-NC-SA. You know: "Hi Youtube, I posted this episode, it belongs to Warner Studios, no disrespect intended."

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app103
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« Reply #8 on: March 01, 2012, 02:32:04 PM »

Interesting stuff.

From what I have seen, it's almost the other way around - everyone who "Shares" something that Infringes Copyright seems to be "Automatically ReLicensing" the original copyright into CC-BY-NC-SA. You know: "Hi Youtube, I posted this episode, it belongs to Warner Studios, no disrespect intended."

Technically, that's not true since the original copyright holder never gave them a license giving them permission to share it in the first place. Sharers that don't have a license to redistribute don't really have much of a leg to stand on in court if they get sued. And neither do those that reshare from them. A takedown notice sent to Youtube would get it removed and the uploader really wouldn't be able to dispute it by saying "but I have a license to redistribute it".
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« Reply #9 on: March 01, 2012, 03:04:00 PM »

Interesting stuff.

From what I have seen, it's almost the other way around - everyone who "Shares" something that Infringes Copyright seems to be "Automatically ReLicensing" the original copyright into CC-BY-NC-SA. You know: "Hi Youtube, I posted this episode, it belongs to Warner Studios, no disrespect intended."

Technically, that's not true since the original copyright holder never gave them a license giving them permission to share it in the first place. Sharers that don't have a license to redistribute don't really have much of a leg to stand on in court if they get sued. And neither do those that reshare from them. A takedown notice sent to Youtube would get it removed and the uploader really wouldn't be able to dispute it by saying "but I have a license to redistribute it".

I think we are agreeing, which suggests you haven't seen my "quotes" convention. A posted episode is certainly Infringing, no quotes. However when the poster uploads it and adds the key phrase "This is not mine, it's from the movie studio", I then meant that they are (yes, illegally) effectively altering the license. (Because you have to ask, either how can they not know that they are infringing, or they know they are but think that the penalties somehow don't apply to them.

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« Reply #10 on: March 01, 2012, 03:12:00 PM »

The real problem with Creative Commons IMO is that they tried to keep it loose and on the honor system while at the same time trying to give it some legal 'teeth.'

That doesn't usually fly in a courtroom.

While I admire the motivation and the philosophy behind it, I can't help but think it's largely unworkable in its current incarnation. Mainly because it attempts to provide all the protections that a registry would provide - without actually maintaining a registry.

So whenever push comes to shove, it's extremely difficult to enforce CC provisions if a well-financed challenger stepped up to the plate over a given piece of creative work. And all assertions to the contrary on CC's website, it's still not a given. Most judges take a fairly dim view of assertions and appeals to justice in the absence of due diligence and an actual law to fall back on.

If CC wants to be taken seriously, it's going to have to get much more serious about what it's doing. Because right now it's more like a social club than a licensing organization. If you read the policy pages on the website, CC makes all sorts of claims and establishes a fairly specific set of rules. Then it negates it all with the following:

Quote
Can Creative Commons give legal advice about its licenses or other tools, or help with CC license enforcement?

No. Creative Commons is not a law firm and does not provide legal advice or legal services. CC is similar to a self-help service that offers free, form-based legal documents for others to use. CC also provides a jurisdiction database where you can compare the international licenses (formerly known at the "unported licenses") and ports (adaptations of the international licenses for particular jurisdictions), and a license versions page where you can compare the differences between license versions.

The CC wiki has a list of lawyers and organizations who have identified themselves as willing to provide information to others about CC licensing issues. However, please note that CC does not provide referral services, and does not endorse or recommend any person on that list. CC's Affiliate Network may also be a good resource for information about the licenses in a particular jurisdiction, though they should not be contacted for legal advice, at least in their capacity as a member of our CC Affiliate Network.

Who gives permission to use works offered under Creative Commons licenses?

Our licenses and legal tools are intended for use by anyone who holds copyright to the work. This is often, but not always, the creator or author. Creative Commons has no authority to grant permission on behalf of those persons, nor does CC manage those rights on behalf of others. CC offers licenses and tools to the public free of charge and does not require that creators or other rightsholders register with CC in order to apply a CC license to a work. This means that CC does not have special knowledge of who uses the licenses and for what purposes, nor does CC have a way to contact authors beyond means generally available to the public.

If you would like to obtain additional permissions to use the work beyond those granted by the license that has been applied, you should contact the rightsholder.

Does Creative Commons collect or track works licensed under a CC license?

CC does not collect content or track works except by way of example. CC builds technical tools that help the public search for and use works licensed under our licenses and other legal tools. For instance, the CC Network allows creators and users to express their support for Creative Commons, and also provides a tool for creators to authenticate ownership of their works. CC also offers tools like CC Search to help the public discover works offered under Creative Commons licenses on the Internet via CC-aware search engines and repositories.


So ok...there's no registration, no tracking, no support, no legal assistance...just a bunch of 'feel-good' stuff about sharing and being open. All very noble. And I mean that in all sincerity. But it hardly gives a CC license issuer much to work with if somebody violates those rules. Because without an underlying law specifically for CC, or an organization that keeps track of registrations - and attempts to enforce the rules - you're basically just issuing your own personal license. Except in this case, it was written for you by CC.

Not very good protection. More along the lines of using "moral suasion" as they (used to?) teach in management school.

And any good attorney will tell you if you have genuine faith in the notion of "moral suasion" when dealing with business, they have a bridge on Brooklyn they'd like to sell you.



Copyright doesn't have great protection or tracking either. The big problem is that "the instant something is created, it gains automatic copyright". It doesn't have to be filed with the US copyright office, though there's something about limitations in damage recovery in a lawsuit if you don't.
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Renegade
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« Reply #11 on: August 24, 2013, 04:13:19 AM »

<darkchanting>
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Pellentesque quis sodales lacus. Pellentesque...
</darkchanting>



NECROTHREAD! ARISE!

Well, IANAL, but I see no reason why you and I can't make an agreement and for both of us to explicitly deny the courts any jurisdiction. We *can* do that. Now, how much any court would respect that, I don't know. They tend to like meddling in people's business. tongue But the point above was that the Copyheart license hasn't been tested.

Unless the law is cooler in Aussieland, you *can't* do that - you can't make a contract that is literally unenforceable by law. That's what that last term means.

So no matter how much dear ol' Renny says he wants to, Some Contracts Cannot Be Made. They basically cease to "legally" exist about 0.000000314159236 milliseconds after they are made.

A more silly exaggerated example is "I promise to shoot myself in the head if Microsoft Stock doesn't rise 17 points with Ballmer's departure".

p.s. please take the "anal" out of not being a lawyer. It's the worst tragedy of acronyms ever created!
tongue


What do you mean tragedy? Considering how they screw everyone, I think it's rather apt. tongue Grin

Now, herein are some assumptions...

Unless the law is cooler in Aussieland, you *can't* do that - you can't make a contract that is literally unenforceable by law. That's what that last term means.

So no matter how much dear ol' Renny says he wants to, Some Contracts Cannot Be Made. They basically cease to "legally" exist about 0.000000314159236 milliseconds after they are made.

It doesn't matter where we are - you and I *can* contract outside of any court. What matters is the contract between us - not whether or not a court recognises it or enforces it. God knows the courts don't enforce the laws anyways, so what do they matter? Anyone heard of "too big to fail"? The laws are a joke. The courts are a joke. Justice from the system is a farce. Goldman Sachs was just able to get a "do over" for a series of trades that would have lost them 100's of millions. That's law? It's laughable.

No - our ability to MAKE a contract with each other doesn't rest in the hands of a criminal gang of thugs.

However, we are forced into allowing that criminal gang to enforce any contract we make or to resolve any disputes.

That is - the contract and that someone or some entity will enforce it are 2 distinct things.

For example, say I create a graphic under the REAL license. You think it's cute and post it to your Facebook page. Which happens to be a really bad idea because you're taking a vacation in Thailand and the graphic disparages the king. You go, get picked up and thrown in prison, then try to sue me for your use of the graphic. What does the court do? They often simply throw out portions of a contract as "unenforcable" or something. They may simply exclude the clauses about Aldebaran and all that. But whether or not they recognize the courts in the Aldebaran system doesn't have any bearing on the fact that we contracted on that.
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40hz
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« Reply #12 on: August 24, 2013, 07:06:03 AM »

Don't know how it works elsewhere, but in the US you have a copyright whether you want it or not. If you do CC you still have a legally enforceable copyright. If you don't want it, you can put your work into the public domain - in which case everybody owns the copyright. But there still is, and will always be, a legal copyright in effect on any original creative work.

And yes, and CC has been successfully enforced in US courts. But it works in addition to the copyright. The courts have made it clear it doesn't replace it. And filing a CC does not mean you have a "legal right" to waive copyright. In fact, the courts have repeatedly said you can't waive it.
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« Reply #13 on: August 24, 2013, 07:26:00 AM »

In fact, the courts have repeatedly said you can't waive it.

Unless your name is Satoshi and nobody knows who you are. Cool
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« Reply #14 on: August 24, 2013, 09:11:15 AM »


It doesn't have to be filed with the US copyright office, though there's something about limitations in damage recovery in a lawsuit if you don't.

That's it in a nutshell. Registering copyrights was originally intended as a way to create a source for other people to determine the status of a work. When the law was rewritten by the entertainment and publishing industries in 1976 it was turned into just another regulatory roadblock for competitors.

An unregistered work isn't eligible for statutory damages, although you can still sue to control its use. Since it costs money to file that means a movie studio, for example, will always be able to get damages because all their copyrights will be filed. OTOH if they infringe on some average Joe's copyright it probably won't be filed so he'll have to prove actual damages. No 'up to $150,000 per infringement' if there's no way to determine or even prove damages.
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« Reply #15 on: August 24, 2013, 11:03:56 AM »

^Spot on!

Funny thing is, it's so inexpensive and easy (you can do it entirely online by yourself) to file a copyright that it makes very little sense not to anymore. But there are those who still refuse to avail themselves of it. And as was pointed out above, the difference in available remedies is significantly enhanced in cases of provable infringement.
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« Reply #16 on: August 24, 2013, 02:54:53 PM »

...
It doesn't matter where we are - you and I *can* contract outside of any court. What matters is the contract between us - not whether or not a court recognises it or enforces it.
...
No - our ability to MAKE a contract with each other doesn't rest in the hands of a criminal gang of thugs.
...
That is - the contract and that someone or some entity will enforce it are 2 distinct things.
...
What does the court do? They often simply throw out portions of a contract as "unenforceable" or something.

No Ren, from my feeble understanding of business law, this is not correct. If you have one weakness, it's that once in a while your affinity for rhetoric takes over your discussions. So we have to put away the "let's call the courts a gang of thugs" for a minute.

(At least in the US) you truly cannot make a contract that knowingly violates law. By the definition of Contract itself, it ceases to exist.

Meanwhile, they don't automatically throw out random clauses without a "severability" (spelling?) clause. Otherwise the whole contract risks imploding. They do it sometimes, but it's more of a desperation move by the courts who are basically saying "the contract lawyer was sloppy so we shouldn't do this, but Bad Things happen if we don't".

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« Reply #17 on: August 24, 2013, 03:45:32 PM »

Meanwhile, they don't automatically throw out random clauses without a "severability" (spelling?) clause. Otherwise the whole contract risks imploding. They do it sometimes, but it's more of a desperation move by the courts who are basically saying "the contract lawyer was sloppy so we shouldn't do this, but Bad Things happen if we don't".

There's also the "know what you're signing" part of a contract. Courts have sufficient respect for the individuals entering into a contract that they assume they exercised due diligence and got competent advice before signing on the dotted line. Because if you didn't, unless there's a clear violation of statute in one of the contract clauses - or the contract is deemed unenforceable or illegal, you're SOL and the contract stands. "Fairness" also doesn't factor into the picture since every contract consists of offer, tender and acceptance. So once someone makes an offer, some money is exchanged, and both parties agree and sign, it's a done deal and enforceable. 'Fair' is generally seen as what was agreed to.

Even ordinary duress isn't sufficient to invalidate a contract since certain levels of normal duress (i.e. being required to sign a promissory note or put up escrow in order to avoid legal action for defaulting on a commercial transaction) are a regular part of normal business. In short, you don't have to like it  - or even completely voluntarily sign a paper in order to enter into a valid contract. You just have to agree (even if not willingly) to the terms and do so in a legal manner. 'Undue duress' is another matter. But it has to be pretty egregious before a court will accept a claim of "undue duress" to invalidate a contract. Usually there has to be a provable threat of physical injury (i.e "Sign or we'll break your arms!") before that happens.

Even in cases where contracts are somewhat ambiguous, it's not a good idea (in my state at least) to try to play games with interpretations. Most judges I've seen in contract disputes (where there were no questions of legality or enforceability) will tell the self-schooled legal types: "Did he/she deliver the product or do the work for you? And did you use what they provided? And was the product or service rendered substantially as described in the contract? If so, then pay them."



Contract law in the US is pretty straight forward - and completely rational once you understand its premises.

The reason the courts don't lightly allow a contract to be voided is because people need to have a high degree of confidence in them being enforceable if executed properly. That's not a big government conspiracy. That's just common sense. And what makes a lot of good business possible. Enforceable contracts go a long way towards preventing corruption and doing everything using the "who you know" and "I need a favor..." systems that are common in many places throughout the world.

« Last Edit: August 24, 2013, 04:08:18 PM by 40hz » Logged

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« Reply #18 on: August 24, 2013, 07:59:24 PM »

If you have one weakness, it's that once in a while your affinity for rhetoric takes over your discussions. So we have to put away the "let's call the courts a gang of thugs" for a minute.

But that's half the fun~! Grin Cool


(At least in the US) you truly cannot make a contract that knowingly violates law. By the definition of Contract itself, it ceases to exist.

That's the notion that I'm trying to dispel.

You are equating a "contract" with "law".

Guns exist outside of law. You can get yourself a 3D printer, download some files off of The Pirate Bay, and print one for yourself. You can do this anywhere in the world. Even in places where it isn't legal. That doesn't negate the existence of the gun.

Same goes for drugs. You can grow pot in your house irrespective of the legality of the plant.

There is no magical power of law that can negate the existence of guns, drugs, or contracts.

Meanwhile, they don't automatically throw out random clauses without a "severability" (spelling?) clause. Otherwise the whole contract risks imploding. They do it sometimes, but it's more of a desperation move by the courts who are basically saying "the contract lawyer was sloppy so we shouldn't do this, but Bad Things happen if we don't".

That is a matter of how a contract is treated by courts. I'm not disputing any of that at all. I'm not disputing any "law" or any "legality".

The strongest claim I've tried to make above was that for some radical or unknown and untested contract, knowing how a court will treat it is an unknown.

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« Reply #19 on: August 24, 2013, 08:23:08 PM »

There's also the "know what you're signing" part of a contract. Courts have sufficient respect for the individuals entering into a contract that they assume they exercised due diligence and got competent advice before signing on the dotted line. Because if you didn't, unless there's a clear violation of statute in one of the contract clauses - or the contract is deemed unenforceable or illegal, you're SOL and the contract stands. "Fairness" also doesn't factor into the picture since every contract consists of offer, tender and acceptance. So once someone makes an offer, some money is exchanged, and both parties agree and sign, it's a done deal and enforceable. 'Fair' is generally seen as what was agreed to.

Woohoo for that Russian fellow!

http://rt.com/business/ma...rts-banks-wins-court-221/

Fairness be damned~! Grin

Contract law in the US is pretty straight forward - and completely rational once you understand its premises.

Voodoo and black magic are also straight forward and rational once you understand their premises. Wink

Yes. Literally. I mean that. I'm not kidding. You think I'm kidding, don't you? No. I'm not! Would I ever crack a joke about a serious matter? Well...

You still think I'm kidding, eh? Well, let us examine Black's Law Dictionary for the definition of "understand". Grin



Ok, maybe I'm being a tad silly. But we're still talking about stuff that's just made up out of thin air, right? Wink And I'm not the one who made that up! Really!

The reason the courts don't lightly allow a contract to be voided is because people need to have a high degree of confidence in them being enforceable if executed properly. That's not a big government conspiracy. That's just common sense. And what makes a lot of good business possible. Enforceable contracts go a long way towards preventing corruption and doing everything using the "who you know" and "I need a favor..." systems that are common in many places throughout the world.

Kind of makes me wonder how Goldman Sachs getting a "do over" for their contracts adds to the "high degree of confidence". Cool

Ooops... Oh, I remember now... The 7 rules rule:



I get these kinds of things mixed up every now and then, y'know! Wink
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« Reply #20 on: August 24, 2013, 09:16:41 PM »

Even ordinary duress isn't sufficient to invalidate a contract since certain levels of normal duress (i.e. being required to sign a promissory note or put up escrow in order to avoid legal action for defaulting on a commercial transaction) are a regular part of normal business. In short, you don't have to like it  - or even completely voluntarily sign a paper in order to enter into a valid contract. You just have to agree (even if not willingly) to the terms and do so in a legal manner. 'Undue duress' is another matter. But it has to be pretty egregious before a court will accept a claim of "undue duress" to invalidate a contract. Usually there has to be a provable threat of physical injury (i.e "Sign or we'll break your arms!") before that happens.

This is a serious problem. If there were justice, the courts would likely crack down on duress/coercion. Here's a simple example:

http://www.newyorker.com/..._stillman?currentPage=all

Quote
They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services.

No physical injury is threatened there. Only kidnapping and forcible confinement.

A friend of mine from the former USSR was telling me once about how it was common in some places to get pulled over and be forced to sign over your car.

What is duress? When it is permissible to defend yourself against these kinds of things?

Keep in mind that one of the greatest weapons throughout history that has been used to murder countless millions is... wait for it... food & starvation. They are not an imminent threat by any means. By the same token, crucifixion doesn't kill you immediately - it takes a while.

What degree of duress is ok?

My guess is that duress/coercion is never ok. But, that's just me.
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« Reply #21 on: August 24, 2013, 09:45:31 PM »

^@Ren - give Irving Stone and Martin Scorsese a call.

Sell to the highest bidder.  tongue  Grin
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« Reply #22 on: August 24, 2013, 10:02:30 PM »

^ Stone is cold dead.  ohmy
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« Reply #23 on: August 24, 2013, 11:18:46 PM »

^Don't let that stop you! Grin
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« Reply #24 on: August 25, 2013, 05:18:25 AM »

^ He's more likely to be searching for *brains* than projects. smiley
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