In this 2011 post and this 2009 post I explored using license-granting language instead of language of discretion. Here’s what MSCD says about this:
Granting language is analogous to language of discretion. Consider [1-4], [1-4a], and [1-4b]. They all convey the same meaning, but granting language using the noun license, as in [1-4], offers two advantages.
First, license-granting language makes it clear that discretion is being accorded with respect to something that the licensor controls.
And second, using the concept of a license allows you also to use, as necessary, the concept of a sublicense. Articulating the notion of A to B to C using language of discretion would be trickier and wordier.
Instead of the granting language in [1-4] you could use the verb license, as in [1-4c], to grant discretion. But using granting language plus the noun license allows the drafter to add adjectives as necessary: nonexclusive, irrevocable, perpetual, and so on. That’s simpler than using adverbs to modify the verb license.
So I’m fine with that. But just because you can use granting language doesn’t mean you should: in what contexts does granting language make sense?
Consider for example the following from a contract in which Acme is agreeing to provide services to the Customer relating to Equipment that Acme sold the Customer:
The Customer hereby grants Acme a perpetual, nonexclusive, and irrevocable license to gather and use data on performance and output of the Covered Equipment …
Why not simply say Acme may use?
I’ll be deeply skeptical if you tell me it has something to do with remedies. We’re not in a magic-words world, where you have to use the word license to magically unlock benefits.
