Legal soundness comes to open source distribution

Bruce Perens bruce at
Sat Aug 3 17:58:13 UTC 2002

> Is there a reference of some sort for this?

It's the case at .
IMO it's not all that germane to warranty disclaimer, and I'm not buying the
chain of extrapolation that leads from this case to the conclusion that
click-wrap might be necessary.

> It's about the only solid reason I see to need to go beyond copyright law.

It's not about copyright law at all. The warranty obligation does not follow
the copyright. It's about:

1. Is a simple warranty disclaimer that does not require agreement

2. How do you need to present the warranty disclaimer?

3. Do you really need a contract that other parties actually agree to in
   some way, for example by clicking "yes"? It's reasonably clear that you
   need one if you want someone else to indemnify you. It's not nearly so
   clear that you need one if you simply want to disclaim warranties.

> Agreed.  That's why I think we need to amend the OSD so that it 
> clearly states that a license must not restrict use, 
> modification, or redistribution of the software.

I agree that there should be no restrictions on use, modification, or
distribution _other_than_those_ necessary to implement the goals of Open
Source, such as disclaiming the warranty, preserving the copyright
statement, mandating source distribution when the licensor chooses that
option, and mandating transmission of the license to all parties. A simple
"no restrictions" equates to public domain.

Larry Rosen:
> I am baffled by everyone's confusion and philosophical rantings.
That's distressing. This is your own community, or should be, since you
claim to represent them. If they are confused, shouldn't you blame your
presentation of the issue? If they are philosophical, and you didn't expect
that, could it be that you've lost touch with them?

So far, I see some significantly better alternatives than click-through.
The very first should be a set of guidelines for distributions and other
environments where free software is installed that would cause them to
inform the user that:

	1) There are licenses.
	2) They disclaim warranties.
	3) This is how you view the licenses.
	4) This is how you look at the source code to perform your own
	   due diligence.
In the case of a distribution, most of them already do this at
distribution install time. Debian does display a click-through warranty
disclaimer when you install it. It also has a login message disclaiming
warranties, but only on the text login. Obviously, this needs to be
beefed up.

In the case of package installers on something other than a Linux
distribution, where we have less control of the enivronment, perhaps
click-through is appropriate, but I still would oppose allowing it to
be a license requirement. A license that requires it is going to cause
us no end of trouble with the environments where we can deal with the
problem more easily.


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