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Re: Licensing question about the BSD

From: Alexander Terekhov
Subject: Re: Licensing question about the BSD
Date: Wed, 10 Aug 2005 14:16:41 +0200

Alexander Terekhov wrote:
> Gifts

I hear that (plonked) GNUtian dak (still***) seems to be unaware that 
"attached conditions" for downloads (I mean electronic distribution) 
become binding only via affirmative action on part of recipient. 
Territorial hints aside for a moment, he might (finally) want to read 
Specht v. Netscape Communications Corp.


unlike the user of Netscape Navigator or other click-wrap or shrink-
wrap licensees, the individual obtaining SmartDownload is not made 
aware that he is entering into a contract. SmartDownload is available 
from Netscape's web site free of charge. Before downloading the
software, the user need not view any license agreement terms or even 
any reference to a license agreement, and need not do anything to 
manifest assent to such a license agreement other than actually 
taking possession of the product. 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.


Unlike most of his fellow Plaintiffs, Michael Fagan alleges that he 
obtained SmartDownload from a shareware web site established and 
managed by a third party. Defendants dispute Fagan's allegations, 
insisting that the record shows that he must have obtained 
SmartDownload from Netscape's web site in the same manner as the 
other Plaintiffs discussed above. I need not resolve this factual 
dispute. If Fagan in fact obtained SmartDownload from the Netscape 
site, his claims are equally subject to my earlier analysis. If, 
however, Fagan's version of events is accurate, his argument against 
arbitration is stronger than that of the other Plaintiffs. While 
Netscape's download page for SmartDownload contains a single brief 
and ambiguous reference to the License Agreement, with a link to the 
text of the agreement, the ZDNet site15 contains not even such a 
reference. The site visitor is invited to click on a hypertext link 
to "more information" about SmartDownload. The link leads to a 
Netscape web page, which in turn contains a link to the License 
Agreement. Assuming, for the sake of argument, that Fagan obtained 
SmartDownload from ZDNet, he was even less likely than the other
Plaintiffs to be aware that he was entering into a contract or what 
its terms might be, and even less likely to have assented to be 
bound by the License Agreement and its arbitration clause. 
Therefore, Plaintiff Michael Fagan cannot be compelled




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