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Re: JMRI case -- Implementation of the Federal Circuit's Opinion

From: Rjack
Subject: Re: JMRI case -- Implementation of the Federal Circuit's Opinion
Date: Mon, 12 Jan 2009 08:09:40 -0500
User-agent: Thunderbird (Windows/20081209)

Rahul Dhesi wrote:
Rjack <> writes:

Rahul Dhesi wrote:
Rjack <> writes:

Next thing you know you'll be calling a copyright license a contract:
I'm staying out of this license/contract debate, but since you are not,
how do you justify calling it a contract in the specific case that the
person downloading GPL software hasn't agreed to the license terms?
"Downloading" constitutes "a manifestation of assent".

So if the downloader doesn't know about the license, or knows about it
but explicitly refuses to agree to it as he does the download, this is
still a manifestation of assent?

Merriam-Webster says assent means "to agree to something especially
after thoughtful consideration". Are you using the word with some other

If you raise the license as a defense in a copyright infringement action then you "assented" (accepted). Many people get confused by the term "acceptance". You can "accept" a license even though the license is later ruled unenforcible. If a term in a contract is ruled "illegal" then by definition a court will refuse to enforce the term regardless of the balance of equities. Generally a copyright license is construed against the drafter, especially contracts of adhesion (like open source licenses). One form of relief from an illegal license is an action for promissory estoppel.

Rjack :)

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