Copyright vs? Click-wrap "contract"

[Brendan Hide]

IANAL, but I think I have finally nailed this sucker. If anybody disagrees with me please let me know why.

You have the right to do anything with a copyrighted work only if you have agreed and complied with (and read) the license.

If you have not read the license, then you are not aware of your rights to the work and you should assume that you have no rights over the work, bar the fair use rights given to you by the law and international treaties.

Imagine you pick up some software from a store, but the box contains everything except the license. Do you have the right to use the software? Legally, you need to secure a license before you can use the software. Of course, nobody would, in their right mind anyway, sue you for using the software you paid them for.

If the license gives you secondary rights, then you have to read that license in order to "get" those rights. If a user claims that there was no assent that the user agreed with the license, because the license was not presented to them, then there was no assent from the author that the user can *use* the work either. Fair use laws give the user some basic rights but that is it.

If anything still needs clickwrap, it is the warranty. The only reason for this is that the law already gives the user fair use rights, thus potentially giving room for a suit. Other than that, I do not see why a clickwrap licenses/contract are in any way legally necessary.

Here, I can easily see Larry's single-click click-wrap solution working very well.

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Brendan Hide
[EMAIL PROTECTED]
Technical Writer

SA Computer Magazine
http://www.sacm.co.za/
+27 21 715 7134

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