Re: JMRI case -- Implementation of the Federal Circuit's Opinion

[Rjack]

Rahul Dhesi wrote:
> Rjack <user@example.net> writes:
>
> > Rahul Dhesi wrote:
> > > Rjack <user@example.net> writes:
> > >
> > > > Next thing you know you'll be calling a copyright license a contract:
> > > I'm staying out of this license/contract debate, but since you are not,
> > > how do you justify calling it a contract in the specific case that the
> > > person downloading GPL software hasn't agreed to the license terms?
> ...
> > "Downloading" constitutes "a manifestation of assent".
>
> So if the downloader doesn't know about the license, or knows about it
> but explicitly refuses to agree to it as he does the download, this is
> still a manifestation of assent?
>
> Merriam-Webster says assent means "to agree to something especially
> after thoughtful consideration". Are you using the word with some other
> meaning?

If you raise the license as a defense in a copyright infringement 
action then you "assented" (accepted). Many people get confused by 
the term "acceptance". You can "accept" a license even though the 
license is later ruled unenforcible. If a term in a contract is 
ruled "illegal" then by definition a court will refuse to enforce 
the term regardless of the balance of equities. Generally a 
copyright license is construed against the drafter, especially 
contracts of adhesion (like open source licenses). One form of 
relief from an illegal license is an action for promissory estoppel.

Sincerely,
Rjack :)