Open source Free software 2618

Clauses usually aren't that blatantly illegal. If they are, you'd complain during the license negotiation process.

It would be strange for a licensee to say "hm, we can't do this because of clause X, but well clause X violates anbreastrust law so let's do it anyway".

Typically what happens is the licensee has an understanding of what he's allowed to do, and the licensor gets upset because they think that understanding is wrong. They go to court, the licensor says "this clause is to be interpreted as so-and-so", and the licensee says "no way, that interpretation would mean we are in breach of contract; therefore the clause is copyright misuse, it violates anbreastrust law and so the clause should be declared null and void".

But yes, in the end the court has the right to take out a big red marker and strike out clauses it holds to be unenforceable. That's the whole point of declaring clauses unenforceable. And that's also why you need to agree on severability of the clauses in your contract. Do you want the whole thing to do down the drain because one clause is invalid?

Arnoud

-- Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself