1. Shrink-wrap licenses typically say on the shrink-wrap: "By breaking
this seal you agree to abide by the license." I think the court found
significant that there was no such language in the case of Netscape's
download. It is a standard principle that one must know that both parties
must know, or must be in a position in which a reasonable person would
know (e.g., if you pump gas at the gas station, if you are a reasonable
person you know you are entering into a contract to pay for the gas), they
are entering into a contract in order for the contract to be binding.
For instance, on my web site there is a download of RM, a fast file
deleter for DOS. I could bury somewhere on my web site a license that
says: "By downloading RM, you agree to pay Alexander Pruss the sum of
$100,000 within one month in cash or gold", but it would have no legal
validity. (I'm not absolutely sure about the validity of the license
right now which says explicitly that by downloading you agree to be bound
by the license.)
2. Copyright allows for copies in the context of fair use. I think that
in the case of computer software, this may have been expressly
legislatively defined as one backup copy. One can also make a copy if
this is necessary to get the program running on your hardware. (I am not
sure if this means that you can convert diskette formats, or if it means
you can just copy it into RAM to run.)
Alex
--
Dr. Alexander R. Pruss || e-mail: [EMAIL PROTECTED]
Philosophy Department || home page:
Georgetown University || www.pitt.edu/~pruss
New North Building, Room 215 \================================
37th & O Streets
Washington, DC 20057
U.S.A.
-----------------------------------------------------------------------------
"Philosophiam discimus non ut tantum sciamus, sed ut boni efficiamur."
- Paul of Worczyn (1424)
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