Re: Web Copyright Message - Comments? Enforceable?

On 10/23/97, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> Without knowing how, when, or where the notice would appear, or what the
> user would have to do to indicate assent, it would be hard to venture a
> guess as to whether it would constitute an enforceable license. Even
> WITH that additional information, it would be a touch call, considering
> by analogy the way courts have differed in their treatment of the
> enforceability of shrinkwrap licenses.

Yes. A license is a contract, so there must be an offer, acceptance and legal consideration. So, the initial Q to me is whether there can ever be consideration if the copyrighted work is made publically available without some act on the users part to assent to the terms of the disclosure before disclosure occurs. The 7th Cir. would probably validate that procedure under ProCD, but other courts likely would not. Of course, if the work is protected by copyright, the author does not give up the 106 rights merely by publically displaying the work. But if the work is not protected by copyright, as in the ProCD case, and the "copyright license" language is employed after the public disclosure, I am not sure that you can win an argument that it is enforceable. Thats why we have a password protected area on our page, with the user name "I" and the password "Accept", and to get to the non-copyrighted materials (some forms), and some regulations, you have to manually enter these words and click "Ok" Even then, it is not beyond all doubt that an enforceable contract has been made.

To the extent that language is merely a "disclaimer," I don't think you have to have a contract, because the defense to an action in tort or contract where a disclaimer is used is estoppel or consent, or assumption of the risk (or something similar). Not foolproof for sure, but if somebody came to me and said "I relied on this xxx and suffered damages," and there was a disclaimer on the use of xxx, I certainly would not take it on contingency, and would have to think long and hard about taking it all, especially in a non-consumer case (i.e., where the State and Federal consumer protection laws do not come into play, some of which make disclaimers unenforceable).

Mike Oliver.
<oliver[_at_]bowie-jensen.com> Received on Fri Oct 24 1997 - 12:36:07 GMT