Subject: Re: RealNetworks' RTSP Proxy License
From: Rick Moen <rick@linuxmafia.com>
Date: Fri, 7 Sep 2001 09:03:00 -0700

begin Laflamme, Elaine quotation:
> There is a recent case in the Southern District in New York holding
> that a similar provision was not enough to create a contract because
> it did not require an affirmative action such as clicking on an Accept
> button before downloading and using Netscape's SmartDownload.  

I believe the question Sam asked was not "Is this an enforceable
contract term?", but rather "Is this an enforceable licence term?" It is
not at all clear that a valid contract must be formed for this licence
(or licences, generally) to exist.

This point keeps coming up (and not being resolved) concerning
open-source software specifically, usually when someone cleverly notices
the lack of any obvious "consideration" (one of the required elements
for contract formation) and rushes to the hasty conclusion that the
software's licence is without force.

To review, the RTSP Proxy Kit License terms are at
http://www.rtsp.org/2001/proxy/license.html .

  This License Agreement ("License Agreement") is a legal agreement
  between you (either an individual or an entity) and RealNetworks, Inc. 
  ...

This smells mildly of contract (as opposed to a grant of non-default
rights under copyright law) -- and I think lawyers put language like
this into software licences reflexively because they're used to thinking
of software as part of an exchange transaction.

And of course we have:

  YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE
  READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS 
  AND CONDITIONS. 

Again, smells of intended contract, which is at best a bit confusing,
but I'd speculate (IANAL) that it wouldn't prevent the licence being
effective as a grant under copyright law.

  Subject to the provisions contained in this License Agreement, RN
  hereby grants you a non-exclusive, non-transferable, perpetual, 
  worldwide license....

Consistent with a grant of non-default rights under copyright law.

(The terms "agreement" and "agree" also occur elsewhere in sundry places.
But my point is that answering "Is it a valid contract?" is not
disposative of the more-central question "Is it enforceable?")

-- 
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Rick Moen   not-for-profit, locally-owned-and-operated, cooperatively-managed,
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