Legal soundness comes to open source distribution

[Rod Dixon]

I agree with David that click-wrap (or click-through or web-wrap...)
generally denotes what he describes as "download-wrap" licenses. Leaving
aside the matter of "use-wrap" licensing, courts seem to viewing click-wrap
licensing in two forms: the passive license and the "active" license. What
is at issue, often, is electronic contract formation. In other words, did
the user manifest consent to the terms of the license? In this regard,
passive licenses or click-wraps that do not require the user to actually
"click" a dialog box, slect something on a pull-down menu, or some other
user interface input demonstrating "I agree" are less likely to be viewed as
licenses that offer clear evidence that a user may have consented to the
terms of the license. In my opinion, it is far better that this potential
problem is fixed or avoided than ignored. Consequently, I think the OSD
should include something on the click-wrap issue in its next iteration.

With regard to the comment about whether it matters if the user sees the
license, I suppose in a strictly technical sense it is true that
manifestation of consent does not necessarily mean that licensors must prove
that users must actually have seen the license to be bound or denominated a
licensee, but a movement that prides itself on being generally
consumer-friendly might be inclined to adopt a practice that more likely
than not ensures that potential licensees read the copyright license to
which they are bound. Therefore, I would suggest that in response to the
prevailing legal climate and as a policy matter, the click-wrap issue is
important enough to be considered in the next version of the OSD.

- Rod
rod at cyberspaces.org
http://www.cyberspaces.org/dixon/
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132





----- Original Message -----
From: "David Johnson" <david at usermode.org>
To: "Russell Nelson" <nelson at crynwr.com>; <license-discuss at opensource.org>
Sent: Friday, August 02, 2002 12:49 AM
Subject: Re: Legal soundness comes to open source distribution


> 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
> ___________________
> http://www.usermode.org
> pgp public key on website
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
>

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