6 ms·

I don't think courts need to enforce contracts anymore. If someone doesn't live up to their word, others will find out and refuse to trust the bastard. Dishon

by thisrod 18y ago

I don't think courts need to enforce contracts anymore. If someone doesn't live up to their word, others will find out and refuse to trust the bastard. Dishonesty is a losing strategy in the long run, and no one is likely to try it. Furthermore, customers get scared off by contracts that they don't understand, because they could be held to some obnoxious clause that's hidden in there. Enforcing contracts is inefficient, and we should stop doing it. Is there more to ESR's argument than that?

bmelton 18y ago
The reputation aspect doesn't really hold water, as a person's reputation doesn't travel that far, even in this global economy. It's real easy to see how a negative hit to someone like Bernie Madoff ruins his career, but he's a high profile individual that many people know on sight. If I started ripping people off, there's nothing to say I couldn't easily mitigate any negative PR by changing names (or on the internet, just changing handles). In more local endeavors, I could make a mint, ruin my name, and just move to another state (or if pressed, another country.) Contract law still bears an important role in accountability, IMHO.
- mechanical_fish 18y ago
  It's real easy to see how a negative hit to someone like Bernie Madoff ruins his career... Yeah, about $65 billion too late. It's not even a question about reputation scaling -- which (as you say) it does not do, which it hasn't ever done, since even in 10,000 BC you could travel to a place beyond the range of your reputation. (Maybe the Internet will change that. The jury is still out on whether it can, as well as on whether the negative consequences of that are too great and we'll have to take steps to ensure that the Internet can't destroy your reputation worldwide. Reputation isn't all smiles and balloons. You can destroy innocent lives with reputation. Happens all the time.) Reputation just doesn't work in all sorts of situations. Madoff is a prime example, but anyone who uses Twitter, reads The Four Hour Workweek or spends twenty minutes watching TV commercials can find thousands of additional examples. Reputation is easily faked. It is easily bought. It is too readily extrapolated from one narrow field of endeavor to another. It is biased toward members of your family, and toward people who resemble members of your family. It relies on past results to predict future results, and thereby mispredicts events that occur on a longer time scale than the acquisition of a reputation. It works by implicitly assuming its own effectiveness and breaks down in edge cases. ("Why would Mr. Jones feed me Kool-Aid laced with poison? Just think what that would do to his reputation!") Most importantly, reputation is just a predictive tool. When it fails, it leaves you with no recourse: That is not its job. I can use my accountant's reputation to predict whether he will steal my money. But if he does steal my money, reputation is now useless as a tool for getting my money back. That's what a contract is for. The primary purpose of a contract isn't promoting trust; it promotes trust because its primary purpose is to give me recourse after trust breaks down. I can try to take my money back from my account -- and if that doesn't work I can attempt to take it out of his insurance company, his auditors, or even people he has previously paid (look up clawback in the dictionary -- my accountant just explained it to me).
  - shader 18y ago
    Also, even court enforcement of contracts has its limits - you just go outside the borders of a country, and they can't (easily) make you fulfill your contract. That said, I am all for court enforcement of contracts. In fact, I wish that the courts would respect, if not enforce, far more contracts than they do.
rbanffy 18y ago
"Dishonesty is a losing strategy in the long run, and no one is likely to try it." Erm... Microsoft?
ii 18y ago
> Is there more to ESR's argument than that? As I understand, the idea is that market and open source are friendly forces and actually support each other in the long run. The GPL may prevent open-source software from being market-friendly.
krschultz 18y ago
Wow you completely missed the point. I work at a startup that sells 100% open source products. We use a mixture of BSD, LGPL, GPL and EPL licenses depending on products. I have to say that BSD makes a lot more sense when you are selling to businesses. We have never had anyone take code closed on us, but we have found much more acceptance in B2B sales with using a BSD license rather than a GPL license. For us, it is a matter of survival to not use the GPL. And then the main code base moves forward with our paid developers doing about 70% of the work and the community doing 30%. On the other hand, if your primary concern is starting a project with no intention to sell it, I would go with the GPL to prevent a company from shanking your idea. But as an open source company, BSD is the way to go if you are selling to business.
petercooper 18y ago
Actually, when it comes to contracts that don't involve reasonable consideration (in the contractual sense), you might have a point, despite the sarcasm. Consider EULAs. The contract of sale is independent of the EULA contract which some consider a "duress of goods." I'd certainly be in support of not enforcing contracts that can't be broken down into simple statements that a 10 year old couldn't understand. It'd prevent a lot of the problems you see rolling around about now regarding investments people "didn't understand" and the like.

by thisrod 18y ago

bmelton 18y ago

The reputation aspect doesn't really hold water, as a person's reputation doesn't travel that far, even in this global economy. It's real easy to see how a negative hit to someone like Bernie Madoff ruins his career, but he's a high profile individual that many people know on sight. If I started ripping people off, there's nothing to say I couldn't easily mitigate any negative PR by changing names (or on the internet, just changing handles). In more local endeavors, I could make a mint, ruin my name, and just move to another state (or if pressed, another country.) Contract law still bears an important role in accountability, IMHO.

mechanical_fish 18y ago
It's real easy to see how a negative hit to someone like Bernie Madoff ruins his career... Yeah, about $65 billion too late. It's not even a question about reputation scaling -- which (as you say) it does not do, which it hasn't ever done, since even in 10,000 BC you could travel to a place beyond the range of your reputation. (Maybe the Internet will change that. The jury is still out on whether it can, as well as on whether the negative consequences of that are too great and we'll have to take steps to ensure that the Internet can't destroy your reputation worldwide. Reputation isn't all smiles and balloons. You can destroy innocent lives with reputation. Happens all the time.) Reputation just doesn't work in all sorts of situations. Madoff is a prime example, but anyone who uses Twitter, reads The Four Hour Workweek or spends twenty minutes watching TV commercials can find thousands of additional examples. Reputation is easily faked. It is easily bought. It is too readily extrapolated from one narrow field of endeavor to another. It is biased toward members of your family, and toward people who resemble members of your family. It relies on past results to predict future results, and thereby mispredicts events that occur on a longer time scale than the acquisition of a reputation. It works by implicitly assuming its own effectiveness and breaks down in edge cases. ("Why would Mr. Jones feed me Kool-Aid laced with poison? Just think what that would do to his reputation!") Most importantly, reputation is just a predictive tool. When it fails, it leaves you with no recourse: That is not its job. I can use my accountant's reputation to predict whether he will steal my money. But if he does steal my money, reputation is now useless as a tool for getting my money back. That's what a contract is for. The primary purpose of a contract isn't promoting trust; it promotes trust because its primary purpose is to give me recourse after trust breaks down. I can try to take my money back from my account -- and if that doesn't work I can attempt to take it out of his insurance company, his auditors, or even people he has previously paid (look up clawback in the dictionary -- my accountant just explained it to me).
- shader 18y ago
  Also, even court enforcement of contracts has its limits - you just go outside the borders of a country, and they can't (easily) make you fulfill your contract. That said, I am all for court enforcement of contracts. In fact, I wish that the courts would respect, if not enforce, far more contracts than they do.

rbanffy 18y ago

"Dishonesty is a losing strategy in the long run, and no one is likely to try it." Erm... Microsoft?

ii 18y ago

> Is there more to ESR's argument than that? As I understand, the idea is that market and open source are friendly forces and actually support each other in the long run. The GPL may prevent open-source software from being market-friendly.

krschultz 18y ago

Wow you completely missed the point. I work at a startup that sells 100% open source products. We use a mixture of BSD, LGPL, GPL and EPL licenses depending on products. I have to say that BSD makes a lot more sense when you are selling to businesses. We have never had anyone take code closed on us, but we have found much more acceptance in B2B sales with using a BSD license rather than a GPL license. For us, it is a matter of survival to not use the GPL. And then the main code base moves forward with our paid developers doing about 70% of the work and the community doing 30%. On the other hand, if your primary concern is starting a project with no intention to sell it, I would go with the GPL to prevent a company from shanking your idea. But as an open source company, BSD is the way to go if you are selling to business.

petercooper 18y ago

Actually, when it comes to contracts that don't involve reasonable consideration (in the contractual sense), you might have a point, despite the sarcasm. Consider EULAs. The contract of sale is independent of the EULA contract which some consider a "duress of goods." I'd certainly be in support of not enforcing contracts that can't be broken down into simple statements that a 10 year old couldn't understand. It'd prevent a lot of the problems you see rolling around about now regarding investments people "didn't understand" and the like.