OSD modification regarding what license can require of

Forrest J. Cavalier III mibsoft at mibsoftware.com
Thu Mar 14 15:35:20 UTC 2002

John Cowan <jcowan at reutershealth.com> wrote, in part:
> Forrest J. Cavalier III scripsit:
> > It was my understanding that it can be hard to convince a court
> > that a gratis download binds the recipient to a contract/license.
> > (Because there is no consideration.)  
> Not so much consideration as acceptance.  That's what _Netscape_
> established; just putting software on a Web page in parallel with
> a restrictive license doesn't bind someone who downloads the software
> to the license, because there is no reason to think that it was accepted.
> Consideration is a matter of form (de facto); acceptance is not.

You mean "Specht et al v Netscape".  In that decision, there
is a footnote [8] on page 10 which states, (in part) 
   The apparent failure of consideration on Plaintiff's side --
   put simply, Plaintiff's obtaining SmartDownload without giving
   anything in return -- might support a finding that no contract
   exists. However, because I rely on other grounds to find that
   the parties did not enter into a contract, see infra, I need not
   decide this issue.

I am not an expert.  Can you provide a reference to a decision
where the outcome hinged on deciding there was consideration
for a gratis transfer?


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