RealNetworks' RTSP Proxy License

[Laflamme, Elaine]

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:david at usermode.org]
Sent: Thursday, September 06, 2001 9:50 PM
To: sambc at nights.force9.co.uk; license-discuss at opensource.org
Subject: Re: RealNetworks' RTSP Proxy License


On Thursday 06 September 2001 02:36 am, sambc at nights.force9.co.uk 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
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