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Re: US court says software is owned, not licensed

From: Alexander Terekhov
Subject: Re: US court says software is owned, not licensed
Date: Wed, 14 Oct 2009 16:58:33 +0200

Hyman Rosen wrote:
> You miss the essential difference - when you download a copy of
> a GPLed program, it is you who is making the copy, and therefore
> you are bound by the license (if you choose to be; if not, then

Let NYSD.USCOURTS.GOV know about that, Hyman. <chuckles>


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



(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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