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Court Finds Online Software License Not Binding
An Anonymous Coward writes: "The U.S. District Court ruled on Specht v. Netscape Communications Corp., 00 Civ. 4871, saying that a license that users don't even have to see before downloading online free software isn't binding. Calling these "browse-warp" licenses (as opposed to click-wrap), the court found that since usersdidn't have to look at them, users didn't assent to the terms. Netscape's use of SmartDownload, practice of harvesting information through SmartDownload with out an effective license is now suspect as since there is no license, and no assent, there is no agreement. See a report of the case at Law.com Or try to find the rulings at Find Law."
Perhaps there's another way to view this. Instead of us all cheering "hooray, we're free!" we should be saying "how are they going to MAKE it legal."
If my understanding of the ruling is at all correct, the license was not guaranteed to be read, and therefore was not binding. So, lets say the installer for software is no longer available without clicking through.. The file does not even exist per se, you have to go through a CGI to be served it.
Will this be the death of freely available to download software? Will everything be wrapped in a guaranteed license?
The silly part is, assuming they can say they didn't see the license, what gave them the right to use the software then? They should know it's copyrighted...
Copyright is not (for the most part) about use. It's about reproduction and distribution.
This is why there was (and is) so much uncertainty about "automatic" licenses that limit terms of use -- such terms are outside the scope of copyright law. The only way you could claim legal justification to enforce those terms is to claim that the license is a contract that the user has agreed to. This argument was never, that I know of, tested in court, so a coalition of big players lobbied for UCITA (twice, if you count Article 2B as a UCITA precursor) -- UCITA explicity recognizes shrink-wrap licenses as binding legal contracts.
Copyright law for decades has more or less explicitly (through judicial review) recognized the right of a legitimate owner of an artifact to use that artifact in any way that does not otherwise violate the law. In fact, at its base, copyright law allows anyone to reproduce, or to distribute, but not both. I am free (in theory) to make a thousand copies of a book, and keep them for myself. I am free to buy a thousand books and give them away or resell them. What I am not free to do is buy a book, make copies, and distribute the copies.
Of course as we all know, various industry groups have lobbied for and gotten various medium-specific additional restrictions -- witness the aforementioned UCITA, the DMCA, the Audio Home Recording Act, etc.
-- Old Man Kensey
This is absolutely fantastic news. I find it astonishing that any court would consider these so-called "contracts" valid at all, but we have to take our victories where we can. This could be "camel's nose in the tent" that will lead to the invalidation of all shrinkwrap and clickwrap "agreements". For an explanation of why shrinkwrap agreements should not be allowed to exist, see my five-year-old editorial on the subject.
Those who worry that this decision may weaken the GPL, or any other Open Source/Free Software license, need not fear. Shrinkwrap "agreements" purport to constrain your right to use the software, whereas the GPL simply constrains your ability to copy and redistribute the software. In other words:
Which one is the product of a less childish mind is left as an exercise for the reader.
The effect of striking down a shrinkwrap "agreement" would be that the default terms of copyright law would apply, which is that you would still be free to use your software, and you still wouldn't be allowed to make copies of it, but all the other "rights" the vendor granted themselves would vanish. This means that the spyware the vendor installed on your machine without your consent would now be actionable.
The effect of striking down the GPL would be that you'd still be able to use your copy of the software but, legally, you wouldn't be entitled to make and distribute copies anymore. However, the practical effect would likely be nil. By releasing under the GPL, the authors are representing that they won't go after you if make and distribute copies of the source. It is likely they would continue to make that representation even absent an enforceable GPL. And they would still have the right to go after people who distribute binaries absent source (since binaries are considered a protected derivative work). That means Linus could still go after Microsoft -- and, to be fair, any other organization -- that tried to loot Linux.
All in all, this decision is a good thing for consumers and users everywhere.
Schwab
Editor, A1-AAA AmeriCaptions
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This sig has been temporarily disconnected or is no longer in service
While this is certainly an anti-"web wrap" decision, it's important to understand that the court gets there in part by suggesting that "clickwrap" is OK, then contrasting webwrap unfavorably with clickwrap.
A.Michael Froomkin
Professor, University of Miami School of Law
Coral Gables, FL, USA
I have a blog.
"I didn't see a thing. I only clicked the mouse a few times thinking it might turn the display back on, your honor..."
Well, as several people have already noted, the GPL is a little different. It's based entirly on copyright, and if you want to copy some ones copyrighted work (and, btw, you don't have to do anything to make your works copyrighted) you damn well have to abide by their terms(within reason). Similarly, you can't make a copy of a book and sell it on the net because the book never made you click "I Agree".
Dionysus vs, Socrates! The greatest battle of all time!
Kinda makes me wonder what sort of De Facto license there is on software. As one of the millions of people who've downloaded software under this arrangement, do I still have the right to use it? Is Netscape simply out of luck on some provisions (e.g. do not redistribute)? I'd hate to think that I have no rights regarding the software. Likewise, I'd hate to think Netscape has no rights. Where does a decision like this leave us?
Some people have a way with words, and some people, um, thingy.
The GPL isn't a useage license, it's a copyright license. It doesn't take away any rights you have, unlike the licenses the article talks about, but rather, grants you rights. Different beastie.
Vintage computer games and RPG books available. Email me if you're interested.
1) The judge applies the California Commercial Code to determine issues regarding the formation of the licensing contract. However, that Code only applies to "goods," which are defined as "moveable, tangible objects." It is by no means certain that this definition covers software distributed over the internet.
/. story. The headline certainly doesn't comport with the actual text of the decision.
2) The judge focused largely on the peculiar mechanisms of Netscape's website that distributed SmartDownload to determine that the parties did not assent to the terms contained in the license, because they were not required to specifically assent to anything prior to downloading the software. This contrasts completely with Microsoft's WindowsUpdate, for example, which specifically requires a click-through assent and affirmance prior to download. This distinction will make the impact of the decision limited at best.
3) Finally, this issue arose in the context of a motion to compel arbitration filed by Netscape. It is not completely clear that the plaintiffs utterly failed to assent to any restrictions on their use of SmartDownload, but only that they did not unambigously assent to the licensing agreement that provided for arbitration. This posture could further limit the impact of the decision.
All in all, I'm not really sure this one was worthy of a front-page
--J (yes, IAL)
I'd be a Libertarian, if they weren't all a bunch of tax-dodging professional whiners. - Berke Breathed
I think it's a typo, but having read some of the licenses, "warped" may be a very apropos description...
"Make it ten--I am only a poor corrupt official."
--Captain Louis Renault (Claude Rains), Casablanca
Locate your nearest minor and have them install it for you. Minors can't enter into legally binding contracts without a parental co-sign. Plus most judges wouldn't even think twice about the "I had the 14-year old from next door help me" excuse.
However, it does seem that FSF has thought about these things and hopefully they know what they're doing.
Miko O'Sullivan
Miko O'Sullivan
...but it does absolutely nothing about the illegal harvesting of the user's privacy rights online. Is Netscape above the bounds of the Electronic Communications Privacy Act (18 USC Section 2510) or the Computer Fraud and abuse act (19 USC Section 1030)? The Honorable Hellerstien didn't address that in his order.
If by some chance when the court addresses this issue, it might have an impact on 'spyware' that is out on the internet right now (like Gator).
By Monday, tho, My bet is that the Smart Download will have quite a prominate click-wrap license agrteement on their webpage where the software once was.
IANAL...yet.
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Ian
I disable sigs...do you?
For EULA that you assent to before you open the package. Consider how its similar:
You don't see the license before you assent to it.
This could be a good case to cite it you decide to sue Microsoft at some point.
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Could this be applied to the terms and services links that are common at the bottom of some websites? It seems that if you don't have to view them, they might not be valid. I understand the ruling here, but it could be applied to some other things which aren't necessarily good.