On Monday 12 July 2004 11:39 pm, Don Armstrong wrote: > I'm not familiar with the logic behind this.[1] Could you perhaps > elucidate and provide references to case law? > > I would imagine that you could get terms of a contract that were > impossible to fulfill thrown out, but I've not aware of a license term > being set aside because it was impractical to fulfill that term, > especially when the license is granting you rights which you did not > posess in the first place. (That is to say, rights beyond fair use.)
2nd Restatement of Contracts, Sec 263: Destruction, Deterioration or Failure to Come into Existence of Thing Necessary for Performance "If the existence of a specific thing is necessary for the performance of a duty, its failure to come into existence, destruction, or such deterioration as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made" Which relates back to 2nd Restatement of Contracts, Sec 261: Discharge by Supervening Impracticability "Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or circumstances indicate the contrary." So, putting it all together with the Desert Island Test. Programmer A receives code while on a desert island with a mostly DFSG license attached to it that requires modification of the source be sent back upstream (DUTY) to greedy corporation B. A modifies the source, allowing him to eventually construct a coconut power hellocopter... but fails to send the modifications back to B due to lack of communication facilities. The duty in question will be discharged by the court under section 261 provided section 263 is satisfied (there are two other sections that relate to death and governmental regulation). So, provided A is not on the desert island by choice with the intent to keep the code from B, they will be discharged from their duty so long as it remains impracticable. I can throw about 30 case cites in from the restatement, but they are going to just be examples cases that won't speak directly to your point. Best just to remember what every contract professor tells their students: its all about the restatement. But I'm happy to type them out if you are interested in this beyond pure academic discussion. -Sean -- Sean Kellogg 2nd Year - UW Law School c: 206.498.8207 e: [EMAIL PROTECTED] w: http://www.livejournal.com/users/economyguy/ <-- lazy mans blog "When the only tool you have is a hammer, you tend to treat everything as if it were a nail." -- Abraham Maslow
