[nzlug] Re: M$ is targeting YOU

[Simon Bridge]

On Fri, 2007-03-23 at 21:42 +1200, Nick Rout wrote:
> On Thu, 22 Mar 2007 21:34:42 +1200
> Simon Bridge <corwin at ihug.co.nz> wrote:
> 
> > To determine intentions, we can but take the subject's word for them.
> 
> Not in a legal sense no. The difficulty in assessing subjective intention, and the sef-interest involved in recounting at a later date (ie the tendency of the subject to say what suits them in hindsight) means that the law has developed objective tests, at least in contract law.
> 
> In law the objective test works thus:
> 
> 1. The subject had a dialog box displayed that had the whole license agreement, with a message that said "click 'I agree' if you agree with and accept the license, otherwise click 'cancel' and you will not get the use of the software".
> 
> 2. The subject clicked 'I agree'.
> 
> There is only one legal conclusion. And don't forget, as any supporter of the GPL must support a similar argument. Because the whole free/open source movement cannot survive if this argument fails. We have linux and all its GNU and other supporting software because people are bound by licenses that they accept n one way or another, not in spite of those licenses.

Oh sure: but you said: "reasonable person" in the context of a neutral
observer. Now if we ask whether the vendor has a reasonable expectation
for the clicker to comply - this is a different test.

On point 1. and if the subject has not the the whole licence agreement
in the dialog box - especially in the sense of shrink-wrap licences (I
have one in my hands right now for eg.) where I am deemed to agree
should I break the wrap, yet the terms are hidden inside. Though it may
be interesting to check others experiences. 

Note: in the Vista Home Basic EULA (from MS website) I see that one need
only use the software to agree to the eula. I'm inclided to prefer this
method - so long as the fact there is a licence to comply with and where
to find the terms are prominantly displayed.

BTW: GNU GPL isn't clickwrapped.
It reads a tad like package labels - placed prominently for perusal.
Caveat emptor ... whatever.

As a GPL supporter, the strength of the licence is important to me. As a
scientist, it is important to test the the things that are important to
me - perhaps they shouldn't be so important after all?