discredit some position you think i've taken. I was busy with my Zogby thread and various other pressing things and didn't see this. <
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x446445> In any event, to be attacked on a day like this with a personal thread on a day when I also had DU's number one post allows me the illusion of some minor importance, and for that attention and admitted indulgence, I thank you.
The actual contract language for Sequoia in Alameda (thanks for recognizing that I've personally sued Sequoia so I may be in a position to know things about them) states:
The above is taken direct from paragraph 12 of the contract. Numerous conclusions flow from this language and general principles of law and law-making that both weaken and destroy the premises and conclusions of the OP:
1. Compliance is not promised, "working with" the CA SOS toward compliance is what is promised.
2. Agreements to agree are unenforceable, and this raises the issue of an unenforceable contract because there is some additional act contemplated before the parties have a complete meeting of the minds, i.e. a "working with" the CA SOS.
3. They can lobby their hearts out against an "open source code" CA bill, and allow specifically the threat of litigation regarding takings to have its effect on legislators' calculations. It is litigation RISK that people consider, and the expense even if one wins...
4. The specific language says that they will "work with" the CA SOS under "rules/regulations" then in effect, but at the moment of passage of "open source code" law there would be NO RULES yet in effect because those have to be promulgated after the law is passed and after the SOS obtains legislative authority to engage in rulemaking from the Legislature. This further illustrates the reality that there is an "agreement to agree" here because there will be NO rules/regulations at that particular moment...
AND EVEN IF "COMPLIANCE" IN THE SENSE WE ALL ASSUME HAS ACTUALLY BEEN PROMISED, THEN:
5. There's nothing wrong with or inconsistent with complying with but still suing for damages! When one experiences a regulatory taking one is necessarily complying with the law, that's why your "property" is gone, baby!
6. They are not promising compliance with federal or HR 550 open source code law, only California open source code law.
7. EVERYONE IS EXPECTED TO COMPLY WITH ALL LAWS, SO SEQUOIA IS NOT GIVING UP ANY VALUABLE RIGHT PER SE, OTHER THAN THE "RIGHT" OF CIVIL DISOBEDIENCE if that is a "right." But Sequoia's contracts will typically pledge that Sequoia will comply with the laws and regulations applicable to the jurisdiction anyway.
(on edit) 8. As a contract, Sequoia would try to claim, as they have in my case, that ONLY PARTIES to the contract could enforce it, thus limiting application of this provision to Alameda County only. See, e.g., www.votersunite.org/info/lehtolawsuit.asp (I believe it's in Sequoia's federal court motion to dismiss, later denied)
So, this contract language is weak, likely unenforceable, ambiguous, and not at all inconsistent with making a claim for a regulatory/constitutional takings claim, nor is it inconsistent with terrorizing the legislature via lobbyists with the prospect of said claims against the State as a lobbying strategy, whether overt or covert, to defeat the bill. Ultimately, such language is duplicative of other language that is probably in this particular contract, and is certainly in other Sequoia contracts I know of.
To top it all off, Alan Dechert of the Open Voting Consortium which is the souce of the votetrustusa press release above, thinks Holt's source code disclosure provision is very defective and easily worked around.
Bill Bored, I remain gratified that you would afford this opportunity for discussion of these important subjects.
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