> > Nonsense. People can write standards all they want and they affect you
> > not at all unless you choose to deploy software that implements them
> > and interacts with other people, who justifiably expect the standard
> > to supply the factual meaning to your actions.
>
> It supplies only one set of facts. You want it to override all other facts,
> and become de facto law. That I cannot support.
It doesn't really matter if you support it. The UCC is the law whether you like it or not. And it governs copyright licencing. See Step Saver v Wyse, for example or ProCD. It also covers trading of images on the web, as I'm sure any number of pornography litigation cases could prove.
> > Also, this is not merely my world view -- all I am advocating is that
> > the UCC's "usage of trade" conventions apply to internet standards such
> > as the HTTP standard.
>
> "Usage of trade" does not mean the software industry, or the Internet
> designers. Usage of trade means the practices in the industry that the USER
> is in. Thus, if the usage of that trade assumes no implied (or express)
> right, then guess what? The software standard won't override it.
The trade in question is copyright licencing on the world wide web.
> Your mistake is that you are looking to the wrong entity as the "trade"
> involved. It is the user's type of business, NOT the Internet designers,
> unless the user happens to be writing Internet code.
The trade in question is copyright licencing on the world wide web.
> Yes, you have been clear. I specifically said "one" and NOT your name.
> This list is much bigger than just you, and others HAVE argued implied
> license. Let's not be so self-centered that you can't recognize the
> arguments of others.
You were responding to me and my statements.
> Legally, I don't think you have a leg to stand on. You can argue all you
> want, I doubt any court would find an "explicit" agreement. You use of the
> term violates established understanding of the term.
I reviewed the UCC definitions. They do not define "explicit" agreement. They do define "written" as an intentional reduction to tangible form. Thus a "written agreement" is an agreement manifested via an intentional reduction to a tangible form. The point is that the writing can be presented as evidence of the terms of the agreement.
> > The relevent law which governs formation of copyright licences is the UCC.
> Only in the case of goods. That is a very small segment of the population.
Copyrighted works are goods. Are you really arguing they are not?
> > The UCC tells judges to interpret the factual agreement of a contract
> > using the guidance from "written trade code or similar writing". This
> > applies even to who object to the written trade code as well as to
> > those who don't understand it.
>
> Again, you misapply the law. When it talks about "trade" it is NOT talking
> about the Interent. Are you trained as a lawyer? Because you are
> consistently arguing against established law.
What a laugh. I'm the one supplying citation. I will await with baited breath your citation to "established law" that "trade" as used in the UCC does not include copyright licencing on the world wide web. The sentence that you are rebutting is essentailly taken from §3-3 from _Uniform Commercial Code_ (4th Edition) by White and Summers, page 91.
I suspect that some of the Playboy lawsuits will establish that the UCC governs trade of images on the internet. However, I'm getting tired of being the only one who ever cites any authority, so forgive me for not rushing to dig up proof of the obvious.
> Again, the UCC only applies when were are talking about GOODS. Trade codes
> mean the industry standards that the goods are in. NOT that software is in.
Why don't you cite the UCC's definition of goods? The trade in question is copyright licencing on the world wide web. Are you saying this is not an induxtry? What industry is Kelly actually in then?
> > > It is NOT proper to find an explicit agreement in automated software
> > > responses. Software cannot be used to override the Copyright statute.
> >
> > You will not find caselaw to support the first statement.
>
> I don't need to. YOU need to find caselaw to support the concept that there
> IS an explicit agreement. I seriously doubt that you will find it.
>
> > There is no conflict in finding that software was
> > used to automate one party's negotiations.
>
> There is if the parties have not authorized such automation. You have not
> yet cited one case that supports your "explicit" agreement viewpoint.
Are you saying that Kelly did not authorize the automation in question? That would seem to contradict the following statement from the 9th circuit's opinoin: "Some of these images are located on Kelly's web site or other web sites with which Kelly has a license agreement.".
> > The Hotmail case found an enforcable contract, though Hotmail's side
> > of the negotiation was completely automated by software.
>
> This has nothing at all to do with the topic. Hotmail WROTE the software,
> and the other party, I'm sure, had to agree by some click or other.
So you are saying it is the person who creates the tool and not the person who uses the tool who is responsible for the consequences of its use or any contracts created as a result? That's simply not the law, as gunmakers will quickly point out.
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