(OT) - NOT A Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Fri Feb 8 20:07:08 UTC 2008

On Feb 8, 2008 8:49 PM, Chuck Swiger <chuck at codefab.com> wrote:
> In the case of Free and Open Source software, one can often download
> the software to your machine for free from a FTP or web site, but this
> process of making a copy for yourself is contingent upon having
> permission to do so.  That permission is granted by your agreement to
> the terms of the license of this software, just as it is for the
> proprietary software case mentioned above.


"Netscape's SmartDownload, ... allows a user to download and use
the software without taking any action that plainly manifests assent
to the terms of the associated license ... Netscape argues that the
mere act of downloading indicates assent. However, downloading is
hardly an unambiguous indication of assent. The primary purpose of
downloading is to obtain a product, not to assent to an agreement.
... Netscape's failure to require users of SmartDownload to indicate
assent to its license as a precondition to downloading and using its
software is fatal to its argument that a contract has been formed.
... From the user's vantage point, SmartDownload could be analogized
to a free neighborhood newspaper, readily obtained from a sidewalk
box or supermarket counter without any exchange with a seller or
vender. It is there for the taking. ... Defendants argue that this
case resembles the situation where a party has failed to read a
contract and is nevertheless bound by that contract. See, e.g.,
Powers v. Dickson, Carlson & Campillo, 54 Cal.App.4th 1102, 1109, 63
Cal.Rptr.2d 261 (Cal.Ct.App. 1997); Rowland v. PaineWebber Inc., 4
Cal.App.4th 279, 287, 6 Cal.Rptr.2d 20 (Cal.Ct.App. 1992). This
argument misses the point. The question before me is whether the
parties have first bound themselves to the contract. If they have
unequivocally agreed to be bound, the contract is enforceable
whether or not they have read its terms."

Under your logic, plaintiffs are either IP thieves or must be bound by
the licensing provisions (including arbitration clause in Netscape's
license). Yet AOL/Netscape didn't countersue for infringement and
instead agreed to quite draconian settlement.

How come?


"Notwithstanding Jacobsen's confused discussion of unilateral
contracts, bilateral contracts, implied licenses, "licenses to the
world" and "bare" licenses in his Appellant's Brief, the issue at hand
is fairly simple."

 -- Brief of Appellees (CAFC 2008-1001).

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