From: forda@gtephx.UUCP (Andrew Ford @ AGCS, Phoenix, Arizona)
Newsgroups: news.admin,misc.legal.computing
Subject: Re: NetNews Contract? NOT!
Date: 1 Sep 92 21:05:52 GMT
Distribution: na
Organization: gte

In article <1992Aug31.183922.26422@m.cs.uiuc.edu>, kadie@herodotus.cs.uiuc.edu (Carl M. Kadie) writes:
> 
> In article <1992Aug27.153714.18985@m.cs.uiuc.edu>, kadie@herodotus.cs.uiuc.edu (Carl M. Kadie) writes:
> 
> > Another condition for a legally-enforceable contract is that there be
> > a meeting of minds as to the terms. This debate shows that there is
> > no such understanding.

This debate shows that some folks differ on what they think are the
terms: actions and what a reasonable man would expect would weigh 
heavily in any court decision.

Actions: pretty obvious -- you read posts from all over the world
and then respond in kind.  

Resonable expectations:  Anyone who has read that netnews goes to 
both pay for read and CD-ROM formats should reasonably expect that
anything he puts in his post will not be noticed by the computers
that automatically put everything from given newsgroups into a 
given format. 

So the argument that CD-ROM sales of netnews violates somebody's
copyright is, IMHO, bogus because the person has contracted a 
license to reproduce via usenet and is aware the usenet is available
on CD-ROMs.

> forda@gtephx.UUCP (Andrew Ford @ AGCS, Phoenix, Arizona) writes:
> 
> [...]
> >Please cite some reference -- this sounds like a misquote to me.
> >
> >If you are meaning that it must be the intention of each party to 
> >conduct the transaction, then I'd agree.  
> [...]
> 
> They must also agree on the terms.
> 
> _Business Law_, 3rd Edition, Michale P. Litka & Marianne Jennings, p. 130:
> 
> "The concept of mutual assent is a showing by the parties to each
> other that they agree to the same bargain at the same time. It is an
> act of the mind; therefore, it is necessary that a person express this
> assent by words or conduct. ... The courts apply two tests to
> determine the showing of mutual assent: the subjective 'meeting of the
> minds' test, and the 'objective theory' of contracts. Historically,
> courts required that the minds of the parties meet on each element of
> a contract. ... The objectivists concluded that if a reasonble person
> were to believe that he has entered into an agreement, the contract
> could be considered valid."
> 

Meeting of the minds, then, does not mean that you must agree 
completely on everything or this no contract: it does mean 
that the parties must show agreement to the terms, but that
doesn't mean that you cannot agree to something which you
fail to fully understand.

The act of posting to netnews shows that the poster intended 
to have his/her "work" distrubuted through the net.  However, 
a lack of understanding (a) that one is granting a copyright 
license to every computer on the net, or (b) that the "rules 
of the net" state that one should assume that anything not 
bearing a copyright is in the public domain, or (c) of what 
the net really is does not change the basic understanding 
that the poster had concerning his desire to get his work
sent out to thousands of other people.
-- 
"25 States allow anyone to buy a gun, strap it on, and walk down the street with
no permit of any kind: some say it's crazy.  However, 4 out of 5 US murders are 
committed in the other half of the country: so who is crazy?"   -  Andrew Ford
gtephx!forda@enuucp.eas.asu.edu  OR  !uunet!samsung!romed!enuucp!gtephx!forda
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