Open Source Click-Wrap Notice

[Rod Dixon]

I would be careful not to over-read the court's point.  In Specht v.
Netscape, the court is trying to highlight factors that distinguish
browser-wrap from click-wrap since other courts have generally viewed
browser-wrap contracts as lacking strong indicia of mutual assent.

If the website appears to have merely set up a way to download software and
provided potential downloaders with a notice (that is not hyperlinked) to
read the license, then a court may view the notice as an invitation to read
a license (browser-wrap) rather than conclude that there is sufficient
indicia of mutual assent (e.g., click-wrap). To be clear, no court has
REQUIRED a set of dialog boxes or buttons with "I accept" or "I do not
accept." Rather, the point is that the website that seeks potential user
input (clicking buttons, pulling down menu items...whatever) may strengthen
the licensor's claim that the contract/license is binding upon the parties
because contract formation principles have been followed, and the court may
infer that the license was read and that the licensee agreed to the terms.

-Rod



> Lawrence E. Rosen wrote:
>
> >'Forrest J. Cavalier III' wrote:
> >I would want to agree individually, not in bulk.
> >
> Courts also insist that it should be that way.
>
> >... That is why I suggested in the notice that you
> >there be a simple procedure to review all the licenses.
> >
>
> "Please review and agree to the terms of the Netscape SmartDownload
> software license
> agreement before downloading and using the software."
>                                                     (quoted from the
> quotation in Specht v. Netscape.)
>
> The court said that this language is simply an invitation to read the
> license, and merely because a user saw this text, it cannot be inferred
> that the license will bind the user.
>
> (aside - On strict legal grounds, I feel that the decision in Specht
> requires reconsideration)
>
> "The name of each software program on this distribution and its
> applicable license is listed on the file LICENSE.TXT included with this
> distribution [, which you can read by clicking on "REVIEW THE LICENSES"
> below]."
>
> The court will say that this language is simply an invitation to read
> the licenses, and merely because a user saw this text and clicked on 'I
> agree", it cannot be inferred that the license will bind the user.
>
> Regards,
> Mahesh T Pai.
>
> >
> >
>
>
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