Legal soundness comes to open source distribution

Carol A. Kunze ckunze at
Fri Aug 2 15:37:57 UTC 2002

Russell Nelson wrote:

> 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.

I think its early to state that free software needs a license to which the
user "agrees."

Here is the theoretical difference between proprietary and traditional (GPL,
BSD) free software.   With the former the user agrees to a license and does
not get title to the copy of the program.  Without agreeing to the license
(and the use restrictions in it), the user has no legal right to use the
copy of the software that they possess but do not own..  Basically, its a
license transaction where the user has no ownership in the copy of the
software they possess.

With free software, the user gets title to a copy of the software, which
gives them the right to use it without a license. Basically, its a sale.
The GPL then grants the owner of the copy additional permissions.   These
permissions are not intended to create contractual obligations on either
party.   However, they do give the user who exercises rights of the
copyright owner in accordance with the permission, an estoppel defense
against copyright infringement.   Which is all the user needs.

I think for open source and free software purposes, the non-contractual
permission notice is far superior.    However, it is a problem that the
nature of the GPL (as a non-contractual permission notice) is not really
clear.  Most lawyers think it is supposed to be an agreement.  It would help
to be more upfront about it.

> The question here is whether we should amend the Open Source
> Definition so that it is clear whether click-wrap licenses are
> allowable or not.  We could go either way, but we want to hear from
> you first.  Your opinions solicited, and engaged!

OSI has already blessed licenses which are intended to be agreements or
contracts (see IBM license), so I'm confused about what the point is
here.    And why OSI definition would have to change.  Am I missing



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