OSD modification regarding what license can require of

Forrest J. Cavalier III mibsoft at mibsoftware.com
Thu Mar 14 16:48:55 UTC 2002

[Earlier reply seems to have been lost.  So I rewrote
it and am sending it again.]

John Cowan wrote:

> 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.

Are you referring to the decision
   Specht v. Netscape Communications Corp. No. 00 Civ. 4871 (S.D.N.Y.
   July 3, 2001)

(I accessed the decision at

In the decision, there is footnote 8 on page 10:

  In order to form a contract, parties must exchange some consideration. "Among the
  limitations on the enforcement of promises, the most fundamental is the requirement of consideration."
  E. Allan Farnsworth, Farnsworth on Contracts  2.2 (2d ed. 2000). In general, "the formation of a
  contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a
  consideration." Restatement (Second) of Contracts,  17. 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.


That case was decided on the fact that Plaintiff could download
and use SmartDownload without even reading or being aware of the
license agreement.  The decision includes indications that if
there had been a "click through" requirement to indicate
assent (even if it was on the web), the decision would have
been decided on different grounds.

Have there been cases where consideration was found to be
present in a gratis download?

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