Subject: RE: click-wrap is legally supportable?
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Mon, 28 Oct 2002 11:06:29 -0800

> Supposing 
> a developer on my team, who has no authority to enter into 
> contracts for my company, builds a portion of our product 
> using a GPL'd product. 

You better be able to prove that you have a specific policy against
employees doing that, and that you take reasonable steps to prevent it.

> Or, even further down the food chain, 
> supposing I license a product from a 3rd party vendor, and a 
> member of *that* company used a GPL'd product without company 
> consent (and thus their product is not GPL'd).

The risk is entirely yours unless you use a license (like the OSL or
AFL) that provides that "Licensor warrants that the copyright in and to
the Original Work is owned by the Licensor or that the Original Work is
distributed by Licensor under a valid current license from the copyright
owner."  The worst result is probably that you have to take the GPL'd
code out of your program.

> Since my *company* has not consented on either occasion- does 
> the license hold?

Probably.  Companies act through people.

> >I wonder if you are deemed to have accepted a click-wrap license if 
> >software requiring a click-wrap appears on your machine?  

Probably.  The burden is on you to explain it away.

> Have you 
> >agreed to every license which was clicked past on your 
> machine?  

Probably.  The burden is on you to explain it away.

> What 
> >if an employee with no authority to bind the company to a contract 
> >clicked?  

Perhaps, unless you can prove you have a policy against it or rules for
acceptance of software and the employee was engaged in a "frolic."

> What if someone who has no ability to enter into a 
> contract 
> >clicked (e.g. your kid)?  

Probably the licensor will have to eat it in such situations.  

> What if a repairman clicked?  Or the cable 
> >guy clicked?  

What were the repairman or the cable guy doing in your house.  You sue
them.

> In the various cases which are claimed as 
> precedent, did 
> >the judge get asked these hard questions? 

Probably not.  You want to pay the legal fees to get these questions
properly before a judge?

> >Posted by Cliff on Monday October 28, @08:33AM
> >from the fishy-practices dept.
> >
> >{e}N0S asks: "The cable guy came over to install a cable modem at my 
> >Dad's house. As I watched him do his stuff I noticed he was 
> installing 
> >something called Broadjump Client Foundation. I know you don't need 
> >software for a cable modem to work so I asked if it was 
> necessary. He 
> >said he had to do his list of things, and we had to sign that he did 
> >his list of things, otherwise he couldn't leave it with us to use. 
> >Since I can always remove the software, I agreed, but I 
> noticed while 
> >he was flipping through the install, he was clicking 'agree' 
> on every 
> >EULA that came up. Doing a search on Google for 'Broadjump Client 
> >Foundation' comes up with some pretty scary stuff as far as what it 
> >does, like: 'Builds a database of subscriber demographics and buying 
> >behaviors to help evolve and refine marketing efforts.' Now, 
> how does 
> >this affect us? Neither myself or anyone in my family agreed to the 
> >software; the cable guy did. And is there anyway to get 
> cable companies 
> >to stop doing this as I can imagine since the cable company is a 
> >monopoly in this town, that the percentage of people who still have 
> >this software on their computers is pretty high."

In an appropriate case, you can probably sue the cable company for
getting you in trouble.  Probably worth a letter to your cable company
warning them that their employees are doing something illegal.  In the
situation you described, if you can prove your facts, I don't think the
court would hold you personally responsible.

/Larry Rosen

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