Quoting Don Armstrong ([EMAIL PROTECTED]): > The issue is not whether they are lawfull or not, but merely that > those are the only forms of distribution available exclusively to the > copyright holder.
You are question-begging, again. Sorry, I still do not accept the premise. > > No, it does not follow the forms of contract law. > > See MA Mortenson v. Timberline;[1] > Pro CD v. Zeidenburg; > > In ProCD, which involved a retail purchase of software, the > Seventh Circuit held software shrinkwrap license agreements are a > valid form of contracting under Wisconsin's version of U.C.C. > section 2-204, and such agreements are enforceable unless > objectionable under general contract law such as the law of > unconscionability. ProCD, 86 F.3d at 1449-52. GPLv2, the BSD licence, et alii are not shrinkwrap licences. Moreover, the enforceability of shrinkwrap licences has been heavily contested and is in ongoing doubt, as they have tended to be ruled to be contracts of adhesion (i.e., lacking in meaningful privity of contract). E.g., Step-Saver Data Systems, Inc. v. Wyse Technology (939 F.2d 91 (3d Cir. 1991)) ruled that a particular shrinkwrap licence was subject to the conventional contract-formation guidlines of UCC section 2-207 and would have failed to form a contract for lack of privity if an existing contractual relationship hadn't existed before opening the package. Vault Corp. v. Quaid Software Ltd. (5th Circuit, on appeal -- 847 F.2d 255 (5th Cir. 1988)) ruled that a different shrinkrwap licence was indeed a contract of adhesion and unenforceable (and, indeed, threw out an entire Louisiana statute that claimed the contrary). And, by the way, I just refreshed my memory on your cite of ProCD Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). The court held that no contract was formed by the parties until the buyer "accepted" the seller's terms by either returning the software after reading the license agreement or electing to keep the goods. Essentially, there has to be meaningful opportunity for the buyer to "approve or return", or there could not be any meeting of the minds. The same court later reinforced this guideline in Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997), that a 30-day approve-or-return period was sufficient to overcome meeting-of-the-minds objections, and established binding acceptance. M.A. Mortenson Co. v. Timberline Software Corp., et al. (Supreme Court of Washington 140 Wn.2d 568; 998 P.2d 305 2000) does _not_ advance your assertion. Buyer asserted that he was simply unaware of the purchase terms and claimed he should not be bound, but the facts showed his awareness (having twice asked the buyer to sign an agreement comparable to their disputed license agreement). In any event, as I said, heavily contested: The 7th Circuit with its Wall Street proclivities says yes, adherents of Vault v. Quaid as the leading case say no. UCC2B would of course change that, and is one of the design goals of that code. > > There is (typically) no acceptance conveyed to the licensor, for one > > thing. > > Then as has been shown in various shrinkwrap cases, the entire license > is null and void. [See Spect et al v. Netscape] The alleged _contract_ is null and void. You are still begging the question of licensing irrespective of contract, and I still do not accept your fundamental premise. > > Although _that_ statement may also be true, it is irrelevant to the > > preceding discussion: There need not _be_ formation of a contract for > > copyright law to apply, > > Copyright law applies regardless. Whether or not a contract forms is a separate question from whether or not an enforceable licence can be constructed (e.g., GPLv2 and BSD licence) entirely subject to copyright law. And you have been wasting your time and mine. Enough, sir. -- Cheers, Remember: The day after tomorrow is the third day Rick Moen of the rest of your life. [EMAIL PROTECTED]
