There is a recent case in the Southern District in New York holding that a similar
provision was not enough to create a contract because it did not require an
affirmative action such as clicking on an Accept button before downloading and using
Netscape's SmartDownload. The court also considered where the "contract language" was
positioned. Here, at the bottom of the download page (requiring users to scroll down
to see it), there was a sentence stating "Please review and agree to the terms of
the Netscape SmartDownlaod software license agreement before downloading and using the
software." The statement is linked to a page with License and Support Agreements.
The first paragraph of that page contains the licensing language. The court in this
case recognized three types of licenses, shrink-wrap, click-wrap and browse-wrap and
classified Netscape's license as a browse-wrap . The case name is Specht v. Netscape
Communications Corp., 00Civ. 4871 (AKH), 00 Civ. 6219 (AKH), 00 Cive.
6269(AKH)(S.D.N.Y. July 3, 2001).
-----Original Message-----
From: David Johnson [mailto:[EMAIL PROTECTED]]
Sent: Thursday, September 06, 2001 9:50 PM
To: [EMAIL PROTECTED]; [EMAIL PROTECTED]
Subject: Re: RealNetworks' RTSP Proxy License
On Thursday 06 September 2001 02:36 am, [EMAIL PROTECTED] wrote:
> >YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ
> >THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND
> >CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT,
> > DO NOT USE THE SOFTWARE.
>
> IANAL, but my understanding from this list, and otehr sources, is that use
> of software is not a reserved right and therefore cannot be used to signal
> agreement. Only the exercising of granted rights, which must be ones
> initially reserved, cna be used to signal agreement. I might be wrong of
> course, and if this is already used in open source approved license ignore
> me (but please tell me you are doing so)
This caught me the first time through. What if I disagree with the license?
Can I still use the software? Will I get sued if I do? This is silly.
--
David Johnson
___________________
http://www.usermode.org
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
The information contained in this e-mail message is intended only for the personal and
confidential use of the recipient(s) named above. This message may be an
attorney-client communication and/or work product and as such is privileged and
confidential. If the reader of this message is not the intended recipient or an agent
responsible for delivering it to the intended recipient, you are hereby notified that
you have received this document in error and that any review, dissemination,
distribution, or copying of this message is strictly prohibited. If you have received
this communication in error, please notify us immediately by e-mail, and delete the
original message.
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
