Copyright vs? Click-wrap "contract"

Brendan Hide brendan at
Thu Oct 31 15:42:11 UTC 2002

IANAL, but I think I have finally nailed this sucker. If anybody 
disagrees with me please let me know why.

You have the right to do anything with a copyrighted work only if you 
have agreed and complied with (and read) the license.

If you have not read the license, then you are not aware of your rights 
to the work and you should assume that you have no rights over the work, 
bar the fair use rights given to you by the law and international treaties.

Imagine you pick up some software from a store, but the box contains 
everything except the license. Do you have the right to use the 
software? Legally, you need to secure a license before you can use the 
software. Of course, nobody would, in their right mind anyway, sue you 
for using the software you paid them for.

If the license gives you secondary rights, then you have to read that 
license in order to "get" those rights. If a user claims that there was 
no assent that the user agreed with the license, because the license was 
not presented to them, then there was no assent from the author that the 
user can *use* the work either. Fair use laws give the user some basic 
rights but that is it.

If anything still needs clickwrap, it is the warranty. The only reason 
for this is that the law already gives the user fair use rights, thus 
potentially giving room for a suit. Other than that, I do not see why a 
clickwrap licenses/contract are in any way legally necessary.

Here, I can easily see Larry's single-click click-wrap solution working 
very well.

Brendan Hide
brendan at
Technical Writer

SA Computer Magazine
+27 21 715 7134

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