Lawrence Rosen said on Tue, May 11, 2004 at 08:44:52PM -0800,:

 > During a  long and  difficult discussion on  this list a  couple of
 > years  ago I  argued that  the open  source community  had  to stop
 > burying  its head in  the sand  about obtaining  "manifestations of
 > assent" to its  licenses. Lots of people, including  some OSI board
 > members,  complained about  that fact  of law.   This court  in the
 > second circuit has  now gone beyond that, in  a narrowly fact-based
 > decision, to suggest  that knowledge of the existence  of a license
 > and the repeated  use of the licensed data, at  least in a business
 > context,  may  be  enough  to   form  a  contract  even  where  the
 > formalities of assent  are not complete. Some of  us would like the
 > courts  to  recognize  that  there  are  many  such  situations  --
 > including with lots of open  source software -- where assent to the
 > license  terms is  implied  by repeated  transactions even  without
 > click-wrap  or formal  approval  of the  license  terms before  the
 > licensed content is accessed.

I  think   access  to  data   and  *use*  of  software   are  entirely
different. *distribution*  is a third. *modification*  is fourth. I'll
comment more after re-reading te decision.

 > still   wise  for   open  source   licensors  to   obtain  explicit
 > manifestations of  assent to their  licenses.

Even when the licensor grants permission unilaterally? Like the BSD or


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                deserve neither security nor liberty"
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