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Re: Contracts & Usage (was Re: FilterProxy and DFSG)

Scripsit Edmund GRIMLEY EVANS <edmundo@rano.org>

> > But in order for it to have any legal validity, you do need to have a
> > little click-here-to-agree thing before the user uses the program.  

> How can that make any difference? Assuming that we are talking about
> law of contract here, how can clicking on a button in the privacy of
> your own home can be interpreted as a communication between you and
> another party?

Obviously there can only be a contract under the assumption that the
user needs some right that he has not automatically got before he
clicks the button. Probably the argument goes that we're talking about
the right to do the copying that is inherent in executing the program,
but other variations are also possible.

The argument would then go that *ordinarily* the user would expect
that he has got the Mystery Right along with the copy of the program.
However, when he sees the clickwrap license he gets informed that
*this* particular software does not follow the common convention that
the Mystery Right comes along with the physical copy. Because the user
now knows he does not have the Mystery Right, he will be liable if he
nevertheless uses the program without agreeing to the contract

Under this reasoning it will always be possible to claim that "I did
not accept the contract, so I'm guilty of Mystery Right Infringement
instead of breach of contract". If the Mystery Right is assumed this
will, however, not be to the advantage of the defendant and the
possibility can be ignored.

All this is rather far out, but it can probably be made to sound credible
enough to fool a judge here or there...

Henning Makholm                   "Jeg mener, at der eksisterer et hemmeligt
                                 selskab med forgreninger i hele verden, som
                         arbejder i det skjulte for at udsprede det rygte at
                      der eksisterer en verdensomspændende sammensværgelse."

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