Legal soundness comes to open source distribution

[David Johnson]

On Thursday 01 August 2002 08:18 pm, Russell Nelson wrote:

> The submittor had already been asked if that requirement was a
> necessity.  She said yes, because of various legal precedents.  We
> consulted a few people and yes, it looks like a license without
> click-wrap is weaker at protecting your rights.  So, folks, the
> lawyers are coming.

Does that mean we should get to working cleaning out our flintlocks :-)

Seriously, the problem here is the term "click-wrap". There are two types of 
license presentation in use today that are referred to by this term. The 
first is where the license is presented during installation or first usage. 
The second is where the license is presented before one can aquire the 
software. I'll refer to the first as "use-wrap" and the second as 
"download-wrap" to avoid confusion.

I have few problems with "download-wrap" if the only way to aquire the 
software is to click "I agree". The user has no rights with regards to 
software which they do not possess.

The problem is with "use-wrap". By the time the user sees the license terms, 
they have already aquired the right to install and use the software, 
particularly so if they have aquired the software through a commercial 
transaction. If the license merely grants additional rights to the user, then 
use-wrap is no great problem. But if it lessens any rights already possessed 
by the user, then use-wrap is a serious wrong.

I would have no problems with an Open Source license that mandates the use of 
"download-wrap". But the mandate of "use-wrap" should never be part of an 
Open Source license. Just because the heathens do it doesn't mean we should 
as well.

> The time is coming when you won't be able to distribute software
> unless you have presented the license to the user and their assent is
> necessary to access the software.  Even free software.  Our industry
> is maturing and we need to be more legally careful and rigorous.

First, this sounds like "download-wrap", so the problem is not great. However, 
I still doubt that it is going to be necessary for most Open Source Software. 
The only rights the user will have to modify, distribute and copy the 
software must come from the license, and since those activities are normally 
the only activities regulated by OSS licenses, it does not matter if the user 
sees the license or not.

The only potential problem is with the presentation of the warranty 
disclaimer. By all means, commercial software should be presenting the 
disclaimer to the user, whether by download-wrap or use-wrap. But a lack of 
merchantability disclaimer for non-merchanted software is not, in my 
non-lawyerly opinion, much of a problem.

Besides which, I'm pretty certain that the primary purpose of  proprietary 
click-wrap licenses is not to disclaim warranty.

-- 
David Johnson
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