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For those that are making claims focussing on ‘the letter of the law’ an understanding of implied contractual principles may be in order.
A contract expresses the terms of use for something, usually conditions of use or expectations on the part of the drafter.
An implied contract "presupposes an obligation 'arising from mutual agreement and intent to promise but where the agreement and promise have not been expressed in words.'"
Case v. Shepherd, 140 W. Va. 305, 310, 84 S.E.2d 140, 143 (1954)
A contract does not have to detail implied terms – and if it does then these terms precede the implied connotation. Which basically means, if you include an implied condition within a contract it is taken as an expressed condition.
"[a]n implied contract and an express one covering the identical subject-matter cannot exist at the same time. If the latter exists, the former is precluded.
" Rosenbaum v. Price Const. Co., 117 W. Va. 160, 165, 184 S.E. 261, 263 (1936).
Implied promises are as legally binding as the contract itself, providing that these implied promises are documented separately.
"[a]n implied promise must be as distinctly alleged in a declaration as an express one."
Bannister v. Victoria Coal & Coke Co., 63 W. Va. 502, 61 S.E. 338 (1908).
Declarations of implied promises, relating to the usage of the DIKU code, can therefore extend to previous, subsequent or concurrent documents created by the copyright holders, DIKU. The applicability of such being linked to the time a party enters into the contract, when they make use of the code, apply for use of the code. This additional documentation could include release notes, posts detailing the creators expectations of use or their reasons for releasing the code, any form of documentation that is separate and distinct from the contract, applies to the owners intentions for usage, and does not replicate the contents of the contract. The fact that such implied promises are not SPECIFICALLY detailed in the contract is the very thing that ensures their legal merit.
The case examples given as precedence for legal decisions are from the American legal system, but in Europe the same system applies – but it is arguably more developed with a greater legal precedence behind it.
The Principles Of European Contract Law 1998
Article 6.102 (replaces 5.108) – Implied obligations
In addition to the express terms, a contract may contain implied terms that stem from
a) The intention of the parties
b) The nature and purpose of the contract, and
c) Good faith and fair dealing
The license is certainly vague, but in relation to implied contractual terms – with associated forms of documentation – vagueness is to its credit. Whether the DIKU teams intentions surrounding their release of the code where given to each user in person, and whether the absence of such case by case documentation would impact upon any decisions is debatable. However, the general consensus of opinion regarding their intentions and numerous replications of their intentions in documented form must be considered to their favor – it could be harder to prove a lack of knowledge that an expectation of knowledge.
NOTE – It is also useful to note that the license restricting usage is not limited to profit, it also states “charge money for distributing parts of’. Since output is a form of distribution, albeit not physical, the second clause extends the scope of the contract to undermine ‘non profit’ loopholes. If any money is charged the user is in breech of contract regardless of whether they accrue profit or not.
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