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Re: Some licensing questions regarding celestia

Quoting Don Armstrong (don@donarmstrong.com):

> 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

> > 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

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.

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