RealNetworks' RTSP Proxy License

Rod Dixon, J.D., LL.M. rod at
Sat Sep 8 17:00:12 UTC 2001

Since the issue whether a shrink-wrap, click-through, or website, license is
validly formed in any given case is difficult enough to determine, we should
resist the inclination to make this unduly complicated.  I hope I can
clarify a couple of  points that are often raised on license-discuss.

Although in some circumstances one might find it useful to distinguish some
licenses - - for example, those that are statutory, such as the Copyright
Act's compulsory licenses, from other types of legal relations based upon
contract - - that is not the case, here, regarding, in my view, properly
classified open source licenses.

I suspect that some of you are slightly confusing the debate over what
commercial law rules should govern software distribution with open source
issues. In the software distribution debate, the issue is whether a software
license is, in fact, a license or a veil to disguise the selling of a good.
This is a critical debate over what the default rules of commerce should be
when an end-user or consumer wants to return the software they installed on
their home PC or ordered from a catalog.

Although this debate remains contested in the minds of many (perhaps, due in
part, to the slow or slowed-down adoption of UCITA by most states), this is
not the same issue as those we discuss concerning the terms of the GNU GPL
or whether an open source license is enforceable; the issues are similar,
but distinct. To put it bluntly, if your open source license has a copyleft
provision, you should -- give up the desire? -- or abandon the thought that
contract formation or license enforcement rules will not apply to your
license or that contract principles are inapplicable to your license. (BTW,
that is my opinion, not my legal advice).  But, do note that the more your
license terms resemble nothing more than a non-exclusive grant of copyright
to the end-user, the more likely your "open source" license should be
considered a run-of-the-mill copyright license that is governed by the
Copyright Act, preemptively; if so, your license is probably not an open
source license.


Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
rod at

> -----Original Message-----
> From: Rick Moen [mailto:rick at]
> Sent: Friday, September 07, 2001 12:03 PM
> To: license-discuss at
> Subject: Re: RealNetworks' RTSP Proxy License
> 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.

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