RealNetworks' RTSP Proxy License

Jeffry Smith smith at
Fri Sep 7 17:03:30 UTC 2001

Rick Moen said:
>begin Laflamme, Elaine quotation:
>> 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.  
>I believe the question Sam asked was not "Is this an enforceable
>contract term?", but rather "Is this an enforceable licence term?" It is
>not at all clear that a valid contract must be formed for this licence
>(or licences, generally) to exist.

OK, not being a lawyer, I may not have the full grasp, but from my one 
term of Business Law, I don't see how a license is enforceable EXCEPT 
under contract law.  Nothing in Copyright Law specifies the "Licenses" (at 
least what I've read of the 1976 law and the DMCA), only what the default 
rights of the parties are.

>This point keeps coming up (and not being resolved) concerning
>open-source software specifically, usually when someone cleverly notices
>the lack of any obvious "consideration" (one of the required elements
>for contract formation) and rushes to the hasty conclusion that the
>software's licence is without force.

That is a problem with most EULAs.  However, in the case of Open Source 
(GPL specifically, as that's the one I've used in this arguement), there 
is "consideration."  The recipient of the code gains the consideration of 
being able to redistribute, the author gains the consideration of their 
controls on that redistribution are respected.  Note that "consideration" 
does NOT have to be monitary.


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