RealNetworks' RTSP Proxy License

[Jeffry Smith]

"Laflamme, Elaine" said:
>There is a recent case in the Southern District in New York holding that 
a sim
>ilar 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 
"cont
>ract language" was positioned.  Here, at the bottom of the download page 
(requ
>iring users to scroll down to see it), there was a sentence stating 
"Please re
>view and agree to the terms of
>the Netscape SmartDownlaod software license agreement before downloading 
and u
>sing the software."  The statement is linked to a page with License and 
Suppor
>t Agreements.  The first paragraph of that page contains the licensing 
languag
>e.  The court in this case recognized three types of licenses, 
shrink-wrap, cl
>ick-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.

A key point that I've found on Open Source - you place the license on 
REDISTRIBUTION, not use.  Remember that, under standard Copyright, the 
user has the right to use the software, but not redistribute new or 
modified copies.  The Open Source licenses are what enable that.  Thus, by 
only specifying redistribution, you can mimic the GPL, and say, in effect 
"You don't have to agree with this license, but nothing else gives you the 
rights included.  Use of these rights indicates acceptance of this 
license."

jeff

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