I disagree. First, loads of proper (OSI-approved) Open Source licenses say either your downloading or use requires acceptance of the terms, or that using the software implies acceptance of the terms. Having to agree to a license, for use even without redistribution, makes these (permissive) EULAs.

For example: APL-1.0, APSL-2.0, CAL-1.0, CECILL-2.1, CNRI-Python, EPL-1.0, EPL-2.0, Frameworx-1.0, IPL-1.0, MS-PL, MS-RL, OCLC-2.0, RPSL-1.0, Unicode Inc. License Agreement, and Watcom-1.0, are all framed this way.

Of course, other open source licenses like the GPL explicitly say acceptance is not required for use. Moreover, the most popular permissive licenses such as Apache-2.0, BSD, and MIT, grant the right to use, without saying they require your acceptance.

Second, the copyright grant versus contract (EULA) distinction may be US specific, or certainly it isn't worldwide.

Regardless, we agree this joke (“ROFL”) license clearly isn't open source, for other reasons.