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Are Creative Commons Licenses Even Enforceable?
40hz:
^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.
TaoPhoenix:
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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.
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No - our ability to MAKE a contract with each other doesn't rest in the hands of a criminal gang of thugs.
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That is - the contract and that someone or some entity will enforce it are 2 distinct things.
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What does the court do? They often simply throw out portions of a contract as "unenforceable" or something.
-Renegade (August 24, 2013, 04:13 AM)
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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".
40hz:
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".
-TaoPhoenix (August 24, 2013, 02:54 PM)
--- End quote ---
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.
Renegade:
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.
-TaoPhoenix (August 24, 2013, 02:54 PM)
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But that's half the fun~! ;D 8)
(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.
-TaoPhoenix (August 24, 2013, 02:54 PM)
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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".
-TaoPhoenix (August 24, 2013, 02:54 PM)
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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.
Renegade:
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.
-40hz (August 24, 2013, 03:45 PM)
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Woohoo for that Russian fellow!
http://rt.com/business/man-outsmarts-banks-wins-court-221/
Fairness be damned~! ;D
Contract law in the US is pretty straight forward - and completely rational once you understand its premises.
-40hz (August 24, 2013, 03:45 PM)
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Voodoo and black magic are also straight forward and rational once you understand their premises. ;)
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". ;D
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? ;) 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.
-40hz (August 24, 2013, 03:45 PM)
--- End quote ---
Kind of makes me wonder how Goldman Sachs getting a "do over" for their contracts adds to the "high degree of confidence". 8)
Ooops... Oh, I remember now... The 7 rules rule:
I get these kinds of things mixed up every now and then, y'know! ;)
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