Discuss: Submission of Sybase Open Watcom Public License v. 1.0

David Johnson david at usermode.org
Thu Apr 25 04:23:53 UTC 2002

On Tuesday 23 April 2002 05:47 pm, Karen.Williams at sybase.com wrote:

> Section 2.1.  A new subsection (c) has been added, as follows:  "(c)
> Whenever reasonably feasible you should include the copy of this License in 
> a click-wrap format, which requires affirmative acceptance by clicking on
> an "I accept" button or similar mechanism.  If a click-wrap format is nt
> included, you must include a statement that any use (including without
> limitation reproduction, modification or distribution) of the Software, and
> any other affirmative act that you define, constitutes acceptance of this
> License, and instructing the user not to use the Covered Code in any manner
> if the user does not accept all of the terms and conditions of the
> License."

Oh joy. Okay, I am not a lawyer. But I do have a small bit of intelligence, 
and it has just been insulted by this clause. Warning, I feel a rant coming 

If I legally aquire a piece of software then I have the legal right to use it 
for any legal purpose. Period. As a resident and citizen of the United 
States, this right is granted to me under both Copyright Law and the US 
Commercial Code.

If I have not agreed to this license prior to my aquiring the software, I am 
not bound by it. Even if I have to click "I agree" in order to install the 
software, I am still not bound by it, since the clause is meaningless in the 
context of my prior right to install it (since installation is a form of use).

For identical reasons, use-wrap, or the attempt to equate the excercise of 
the legal right to use the software as a manifestation of assent, is spurious.

If you want me to be bound by certain contractual terms, then you must 
present them to me before I aquire the software. That's the way it works in 
every other industry. The solution, many will say, is to simply put the 
license up on the download page, forcing me to click "I Accept" before I 
download it. But there are several problems with that. You don't know that it 
is me who clicked "I Accept". It might have been my neighbor, or my cat 
stepping on my mouse at an inopportune time. But more important, the  
software cannot be Open Source if you have to agree to a contract before you 
can aquire it. My right to give a copy of the software to a friend is severly 
diminished if I am forced to act as your agent.

Are such clauses considered valid some courts? Yes. But so what. Legality 
does not equate to morality or even rationality. Just because you can do 
something does not mean that you should do it. The Open Source community (in 
full agreement with the Free Software Community) follows a higher standard 
than merely whether something is legal. At one time slavery was legal, but 
that did not make it right.

> COMMENT:  This section has been added because of last year's
> Specht v. Netscape decision, which threw doubt on the validity of what has
> become an accepted industry standard - of trying to make terms and
> conditions applicable (particularly in the web site context) without making
> it clear to the user that he/she is accepting a contract and being bound by
> its terms, and without requiring some affirmative "manifestation of
> assent". 

If you want to make it clear to me that I am accepting a contract, then why 
don't you simply offer me a contract? Is it really that hard that you must 
resort to these legal shenanigans? Give me a piece of paper, and if I agree 
to the terms, I'll sign it in exchange for the software.

> Section 5 (". . .by modifying or distributing the Program (or any work
> based on the Program), you indicate your acceptance of this License to do
> so, and all its terms and conditions . . .." 

This clause is valid for the GPL, because I do not already possess the right 
to modify or distribute the program. If I modify or distribute the program I 
must have either accepted it, or am violating Copyright law. That's what 
makes the GPL work.

In summary (yeah!) let me say this. If you don't want me to distribute or 
modify the software without being beholden to your whims, that is your right. 
But attempt to take away my right to merely use the software and I will be 
mightily pissed. It's gotten to the point that I am considering having the 
presence of a Notary Public every time I install software, just so that I 
have legal proof that I assented to nothing.

David Johnson
pgp public key on website
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