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Re: "GPL requirement could have a chilling effect onderivativedistros"

From: Alexander Terekhov
Subject: Re: "GPL requirement could have a chilling effect onderivativedistros"
Date: Thu, 29 Jun 2006 21:44:55 +0200

Stefaan A Eeckels wrote:
> In the case of the purchase of a copy, it should be rather obvious that
> paying for a single copy does not entitle you to the downloading of as
> many copies as your bandwidth permits, even if the server doesn't stop

That's not what I'm saying. You purchase 500 copies, not one. You have a 
choice: 500 CDs in a box, or download-and-burn-yourself. You choose the 
later. How many times are you going to download?


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


I don't think that unrestricted downloads of GNU stuff shall be
treated under law any different (no matter how many copies you


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