Is it OK for Microsoft and others to forbid disclosure of benchmark results?

[Brian Densmore]

Well, yes and no. A contract can attempt to take away certain rights.
Anyone who has ever been in business for themselves and written or
signed any contracts and been in court to enforce those contracts can
tell you, a contract is as worthless as the paper it is written on. True
you can sign away just about any right in a contract, but that doesn't
make it enforceable or even legal. I have been in business for myself,
and let me tell you any contract can be challenged in a court of law and
the outcomes can be totally unpredictable. The judge may completely
shred the contents of a contract, and rewrite it, or may uphold the
entire contract, or anything in between. Yes, a company can tell you
can't talk about certain things, but unless the company can provide some
valid reason, like revealing that information will give away trade
secrets, that part of the contract becomes unenforceable and void. Oh
and what one state upholds, another will declare invalid. If you are a
business, make your company based out of Nevada; if a consumer, be a
resident of Arkansas, California or Virginia.

> -----Original Message-----
> From: James Edgar Twilley [mailto:grimjack at blitz-it.net]
> Sent: Saturday, November 03, 2001 4:17 PM
> To: DCT Jared Smith
> Cc: kclug at kclug.org
> Subject: Re: Fw: Is it OK for Microsoft and others to forbid 
> disclosure
> of benchmark results?
> 
> 
> If the EULA is a contract, it is voided at the point of 
> purchase if you have to
> pay for the product before you can read the license.  This 
> makes the transaction
> an outright sale.
> 
> DCT Jared Smith wrote:
> 
> > > Man I just looked at this for the first time today.  What 
> this ignores is
> > > the fact that you can not sign away basic rights granted by the
> > Constitution
> > > in an agreement. This is clearly an obstruction of 
> freedom of speech.
> >
> > A point of clarity might be made here: In truth, contracts 
> are a way to
> > specifically limit rights which are given to you by the 
> Constitution. If you
> > are under contract not to speak about a certain topic, no 
> 'freedom of
> > speech' clause in the Bill of Rights will intervene in your behalf.
> >
> > For the duration of the contract, you are liable to its 
> terms: a contract is
> > called 'private law' and while there are certain rights 
> which can never
> > be taken away (where those begin an end changes over time and has a
> > lot to do with how informed about their rights a jury is), 
> contracts simply
> > are a way to take away rights for a duration. It's a good 
> reason to be
> > very careful about every contract you enter. The point that 
> a shrink-wrap
> > contract may not be valid, is a good one.  But the point 
> that a contract
> > cannot take away rights?  Sorry. If that is true, what is 
> the purpose of a
> > contract?
> >
> > Think about it. IANAL, but ICRTFM; it's all public-domain.
> >
> > Here's some legalese, from www.law.cornell.edu:
> >
> > <snip>
> >
> > Contracts: an overview
> >
> > Contracts are promises that the law will enforce. The law 
> provides remedies
> > if a promise is breached or recognizes the performance of a 
> promise as a
> > duty. Contracts arise when a duty does or may come into 
> existence, because
> > of a promise made by one of the parties. To be legally binding as a
> > contract, a promise must be exchanged for adequate 
> consideration. Adequate
> > consideration is a benefit or detriment which a party receives which
> > reasonably and fairly induces them to make the 
> promise/contract . For
> > example, promises that are purely gifts are not considered 
> enforceable
> > because the personal satisfaction the grantor of the 
> promise may receive
> > from the act of giving is normally not considered adequate 
> consideration.
> > Certain promises that are not considered contracts may, in limited
> > circumstances, be enforced if one party has relied to his 
> detriment on the
> > assurances of the other party.
> >
> > Contracts are mainly governed by state statutory and common 
> (judge-made) law
> > and private law. Private law principally includes the terms 
> of the agreement
> > between the parties who are exchanging promises. This 
> private law may
> > override many of the rules otherwise established by state 
> law. Statutory law
> > may require some contracts be put in writing and executed 
> with particular
> > formalities. Otherwise, the parties may enter into a 
> binding agreement
> > without signing a formal written document. See ' 110 of The 
> Restatement.
> > Most of the principles of the common law of contracts are 
> outlined in the
> > Restatement Second of The Law of Contracts published by the 
> American Law
> > Institute. See Restatement (Second) of Contracts. The 
> Uniform Commercial
> > Code, whose original Articles have been adopted in nearly 
> every state,
> > represents a body of statutory law that governs important 
> categories of
> > contracts. The main Articles that deal with the law of 
> contracts are Article
> > 1 (General Provisions) and Article 2 (Sales). Sections of 
> Article 9 (Secured
> > Transactions) governs contracts assigning the rights to 
> payment in security
> > interest agreements. Contracts related to particular 
> activities or business
> > sectors may be highly regulated by state and/or federal 
> law.See Law Relating
> > To Other Topics Dealing with Particular Activities or 
> Business Sectors.
> >
> > In 1988, the United States joined the United Nations 
> Convention on Contracts
> > for the International Sale of Goods which now governs 
> contracts within its
> > scope.
> >
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