[License-discuss] documentation on un-enforceability of ethical licenses? (was Re: License Review Request - Anu Initiative

Pamela Chestek pamela at chesteklegal.com
Tue Feb 6 17:45:36 UTC 2024

On 2/6/2024 7:39 AM, Stefano Maffulli wrote:
> Question for the wider group: Can you point me to a document (legal or 
> otherwise) that argues the unenforceability of ethical clauses, like 
> these ones?
I don't know that there is such a document, at least not under US law. 
We take a very liberal attitude towards what type of obligations parties 
can agree to. In the US, contracts are only rarely unenforceable, such 
as a contract for criminal activity, unconscionability, or impossiblity. 
It is perfectly fine in the US to impose ethics terms in a license.

Instead I think it's a practical problem. Licenses are not 
self-enforcing, someone has to bring a legal claim for enforcement. Only 
the licensor can enforce the contract (unless the license has a third 
party beneficiary, in which case the third party can enforce it only 
insofar as that party's interest is impacted). Is the licensor going to 
become the ethics police of the world, committing resources to go after 
every use that breaches the ethics provision?


Pamela S. Chestek
Chestek Legal
300 Fayetteville Street
Unit 2492
Raleigh, NC 27602
pamela at chesteklegal.com
(919) 800-8033

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