Subject: RE: Browsewrap Agreements
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 11 May 2004 20:44:52 -0800

 Tue, 11 May 2004 20:44:52 -0800
John Cowan wrote:
> YAAL and I am not, but I think this case is narrowly fact-based and
> doesn't portend squat.  It depends critically on the fact that Verio
> snarfed Register.com's data over and over, even though they should
> have known after the first one what the story was.  The court's
> apple analogy is an excellent one.

You are perhaps right. What I meant to compare was the situation where
companies over and over download open source software and then say with
aplomb, "we didn't assent to the license." 

During a long and difficult discussion on this list a couple of years ago I
argued that the open source community had to stop burying its head in the
sand about obtaining "manifestations of assent" to its licenses. Lots of
people, including some OSI board members, complained about that fact of law.
This court in the second circuit has now gone beyond that, in a narrowly
fact-based decision, to suggest that knowledge of the existence of a license
and the repeated use of the licensed data, at least in a business context,
may be enough to form a contract even where the formalities of assent are
not complete. Some of us would like the courts to recognize that there are
many such situations -- including with lots of open source software -- where
assent to the license terms is implied by repeated transactions even without
click-wrap or formal approval of the license terms before the licensed
content is accessed. Whether and how the courts will take this doctrine
beyond this narrow factual situation is uncertain. But it does give some
hope to those on this list who hate click-wrap and wish the law allowed less
formal license assent. If I were practicing in the second circuit, I would
certainly cite this case if faced with an analogous contract-formation
problem.

UCITA, for all its many flaws, intended to address through legislation this
problem of informal assent to commercial software licenses. That bad law has
gone down in flames, but it seems at least some courts are dealing with the
problem even in the absence of a statute.

In the meantime, and in the absence of clear law or clear precedent, it is
still wise for open source licensors to obtain explicit manifestations of
assent to their licenses. As you suggest, this case may not portend anything
at all.

/Larry Rosen

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