craig <[EMAIL PROTECTED]> writes:
> I was told last night by an IP lawyer that "click-through licenses have
> been upheld in court".
Yes, I believe that's been the case for a while. A click on ACCEPT
appears to be legally roughly equivalent to the signature on a contract,
provided you can prove the person did that (signatures are a bit more
permanent and lasting and easier to establish). This is a Good Thing; if
this weren't the case, ISP AUPs and the like would be uninforceable and
e-commerce would become very difficult. I don't have a problem with that.
> That is, if you download what *appears* to be free software via FTP or
> the Web, get it on your machine, run it, and it says "click ACCEPT if
> you accept <whatever terms>, else click DENY and you must destroy all
> copies of this software [or whatever]", and you click ACCEPT but do not
> abide by the terms (even though you abide by the *legislated* terms for
> copyrighted works, i.e. you don't redistribute the code), you are liable
> for -- something, I guess, infringing the copyright, even though you
> didn't, or infringing the license, even though you did not agree to it
> in any legally binding contract with another person, organization, or
> duly appointed agent thereof.
I'd double-check some of the rest of this with another IP lawyer. *Until
you have accepted the contract* you aren't bound by its provisions; you're
bound by whatever basics of copyright law apply. (IANAL, but this is just
obvious common sense -- contracts don't apply to you until you agree to
them.) If you are in legal possession of a copy of a piece of software,
you're still in legal possession of that copy even if you don't agree to
some additional later contract. In order to make you agree to the
contract as a condition of getting a copy of the software, I'm pretty sure
they have to *make* that a condition; that's why if you download, say,
Postfix from IBM's web site, they put the license up on the screen and
make you accept it before you get a copy.
So the only way I can see the above working is if somehow you're not in
legal possession of the software after you rejected the contract, which
makes no sense to me at all.
Copyright law in the United States specifically gives you the right to
make whatever copies of software are necessary for the normal running of
the software package. However, I can see the argument that in this case,
this only implies your right to run the software and get that dialog box;
you're then presented with a contract you have to agree to to continue.
So my non-lawyer *opinion* is that you're not required to destroy the
software, you still have a legal copy, and you're permitted to make
archival and backup copies of it and run it as many times as you want to
see that dialog box, but you can't do any more than that with it without
accepting the contract.
--
Russ Allbery ([EMAIL PROTECTED]) <URL:http://www.eyrie.org/~eagle/>
