Contract law recently reared its head to remind us that people are relying on some agreements that remain largely untested in a court of law ... only for it to end up under creative commons after all of that.
It has been an intense couple of weeks hasn’t it? There’s some basics of contract law that this piece will assume you are familiar with, and as the dust clears we can use this as an educational opportunity to look at contracts. I'm not a lawyer, and no information included herein should be construed as legal advice.
That doesn’t mean the contract cannot be revoked, nor does it mean that simply including the term irrevocable will magically make the contract unable to be changed or ended. Terms that would constitute a breach of the contract would result in the termination of an agreement even if said agreement was termed irrevocable. If an irrevocable license, for example, had a term that the color orange would never be used in conjunction with the licensed material, using orange would result in a justifiable termination of the contract for breach.
The question arises as to why the term irrevocable was added to a large number of the licenses for software in relatively recent history. The history is complicated as some lawyers have suggested that the term may be unnecessary or imprecise. There’s even a tendency for terms to sometimes be added because they sound good even if they don’t work the way that they may have been intended. It may be for the purpose of making the proffering of the license itself to be irrevocable instead of (or in addition to) the agreement specifically.
As you can see, irrevocable does not, strictly speaking, mean irrevocable when used in a legal sense. Law has its own form of jargon and terms of phrase, just like game design, and you should rely on a lawyer or other legal expert whenever possible.
It has been an intense couple of weeks hasn’t it? There’s some basics of contract law that this piece will assume you are familiar with, and as the dust clears we can use this as an educational opportunity to look at contracts. I'm not a lawyer, and no information included herein should be construed as legal advice.
The Definition of Irrevocable
As covered elsewhere, the term’s use in a legal sense is a relatively new phenomena. It often comes up in licenses like creative commons as a way to establish that the intent of the agreement is for it to last for an infinite amount of time, and for the regular course of business should not result in any changes to this.That doesn’t mean the contract cannot be revoked, nor does it mean that simply including the term irrevocable will magically make the contract unable to be changed or ended. Terms that would constitute a breach of the contract would result in the termination of an agreement even if said agreement was termed irrevocable. If an irrevocable license, for example, had a term that the color orange would never be used in conjunction with the licensed material, using orange would result in a justifiable termination of the contract for breach.
The question arises as to why the term irrevocable was added to a large number of the licenses for software in relatively recent history. The history is complicated as some lawyers have suggested that the term may be unnecessary or imprecise. There’s even a tendency for terms to sometimes be added because they sound good even if they don’t work the way that they may have been intended. It may be for the purpose of making the proffering of the license itself to be irrevocable instead of (or in addition to) the agreement specifically.
Can You Change It?
As we saw from some of the draft versions of the OGL, the license was sometimes paired with an assertion that it could be a contract that can be unilaterally changed by one side without the other party having any say in the matter. This may have other problems with its creation. From Ian Literovich, a lawyer at Karp Litigation:Further, there are times when the courts will step in to address power imbalances and other problems in a contract. Sometimes, saying “‘it’s unfair’ can move judges to act,” says Literovich. A common circumstance when the court will intervene is when one party lacks capacity, the legal term for whether a person is capable of understanding and agreeing to a contract. A court would probably step in and point out a newborn isn’t really capable of agreeing to anything, as an extreme....in the absence of [an amendment provision], what is the power of a single party to unilaterally change the terms? And if one party can make the entire contract into playdough at a moment’s notice, it could be that the agreement fails because it doesn’t have clear terms.
As you can see, irrevocable does not, strictly speaking, mean irrevocable when used in a legal sense. Law has its own form of jargon and terms of phrase, just like game design, and you should rely on a lawyer or other legal expert whenever possible.