Legal soundness comes to open source distribution

David Johnson david at
Sat Aug 3 19:36:02 UTC 2002

On Saturday 03 August 2002 09:25 am, Lawrence E. Rosen wrote:

> What makes anyone think that this *CONTRACT* will be interpreted by the
> courts strictly under copyright law?

There are several reasons, but I'll go into just one: there is a significant 
number of laymen in the community that doubt the bona fides of click-thru 
contracts. Contracts of adhesion are not in question here, merely that subset 
known as shrink-wrap, click-thru and the like.

The primary evidence that these contracts are not bona fide is that the 
licensor does not have the exclusive right to install and execute the 
software. The potential licensee already has rights to install and execute 
the software which they possess. Furthermore, one cannot make the exercise of 
a preexisting right the indication of assent.

Here is an example: What if you purchased a movie DVD, inserted it into your 
DVD player, only to discover that a contract being displayed with the 
instructions to indicate agreement or non-agreement? Would such a contract be 

What if you had to press a button saying "I Agree" in order to start your 
automobile? What if untwisting the cap off a bottle of beer indicated 
acceptance to hold the brewer blameless for any damages that might occur? 
What if breaking a paper seal printed with a contract were necessary in order 
to read of new book you just bought?

Some Open Source licenses ARE contracts in certain situations. The GPL acts as 
a contract when you distribute the software, because the distribution of the 
software is an exclusive right of the author, and can certainly be used as an 
indication of assent. But any license that holds the exercise of preexisting 
rights to be assent is severely flawed.

> Now, what if a distributor under the MPL insists that *users* of his
> software indicate clearly their assent to this contract?  Should the OSD
> prevent such manifestations of assent?

A distributor can always "wrap" an OSS license with a form of click-thru. 
There are a few Open Source projects that do this, such as the Qt as obtained 
directly from Trolltech. But the larger question is whether an OSS license 
can mandate the use of click-thru. I have no problems with typing "yes" when 
I build Qt. But I would have serious problems if Trolltech required me to get 
a "yes" response from everyone I subsequently distributed the software to.

My opinion is that the OSD can allow the use of click-thru, but that they must 
not allow the mandate of click-thru.

David Johnson
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