> You also agree that either the Licensor or a Recipient (as an intended third-party beneficiary) may enforce the terms and conditions of this License against You via specific performance. (emphasis added)
CAL, section 2.3.
This line about specific performance may make this “license” into a legally-binding contract, because specific performance is a contract remedy. Usually, if you fail to meet a license condition, you just lose your license, which might make you liable for infringement (e.g., of copyright). Here, this line may mean that a court could force a “licensee” to comply with the condition instead of just paying monetary damages.
In UK law (I am not familiar with any other legal jurisdictions), that licence agreement isn't a contract at all — even with that line about specific performance included — because no consideration (something of value) has been given by the developer intending to use the software, the licensee.
If such a licence were to be subject to the jurisdiction of UK courts, I don't think the licensor (or the recipient as a third-party beneficiary) would win.
Re consideration, a promise to do or forego something in the future can be sufficient consideration to form a binding contract. In fact, most contracts are an exchange of promises (e.g., any sales contract where goods and payment will be delivered in the future).
Here, the CAL contains additional language indicating that the author intends for the CAL to be not just a license, but also an enforceable contract including the license conditions:
> In order to receive this License, You must agree to its rules. The rules of this License are both obligations of Your agreement with the Licensor and conditions to your License. You must not do anything with the Work that triggers a rule You cannot or will not follow. (emphasis added)
Ah, thank you for clarifying this for me. I'm aware that promise to do or forego something can be sufficient consideration but clearly I did not read the CAL sufficiently to identify what the licensee was going to do or forgo.
I too found that clause problematic, but for a different reason.
The license vs. contract thing doesn't bother me, because as far as I have been able to determine there is not much difference when it gets to court.
What bugs me about that clause is that specific performance (in common law systems...not sure about civil law systems) is from equity, not law. Equity is a set of remedies that some common law systems developed to address cases where the law couldn't really provide a just remedy for the litigants.
In other words, equity is sort of a meta law system that can be invoked by judges to handle things that the regular system cannot. I'm not sure that a contract, which is governed by that regular system, can invoke things from the meta system.
> You also agree that either the Licensor or a Recipient (as an intended third-party beneficiary) may enforce the terms and conditions of this License against You via specific performance. (emphasis added)
CAL, section 2.3.
This line about specific performance may make this “license” into a legally-binding contract, because specific performance is a contract remedy. Usually, if you fail to meet a license condition, you just lose your license, which might make you liable for infringement (e.g., of copyright). Here, this line may mean that a court could force a “licensee” to comply with the condition instead of just paying monetary damages.