Legal soundness comes to open source distribution

[Rod Dixon]

I guess I am unsure of why there is such strong opposition to a clickwrap
licensing requirement. The Netscape-Smart-download case follows the
prevailing legal climate; namely, the licensor increases the risks of losing
a legal challenge to the license (either under the enforcement of a license
provision or the formation of the entire agreement) if the licensor does
not carefully ensure that proof of mutual assent can be shown. Regarding
Bruce's three questions: there are at least two federal laws that might be
relevant to this question: Magnusson-Moss and E-SIGN, and there are likely
to be nearly 50 state laws and 2 uniform codes relied upon by courts. In
other words, I do think the correct answer to the first question is going to
be yes. In response to question #1, I would ask another question: aside from
ease on the license drafter, why would you want to impose terms (a
disclaimer is still a license term, albiet a negation) under conditions that
make it unclear to both parties whether the terms have been agreed to? This
seems to run counter to the purpose of drafting terms.

Questions 2 and 3 appear to be answered, in part, by the
Netscape-Smart-Dowload opinion. I do not agree with all of the court's
points (footnote 10 seems particularly distressing), but I think the court
adopts the prevailing approach by characterizing the netscape license at
issue as browser-wrap lacking manifestations of mutual assent. One final
word of caution on this matter: once the OSI board resolves the approach to
take on clickwrap, whether a particular warranty disclaimer will be enforced
may depend upon a patchwork of state and federal consumer protection laws
for mass market, open source licenses, which is likely to mean that some
disclaimers may not be enforced even if they are enforceable.

Rod





> > Is there a reference of some sort for this?
>
> It's the case at
> http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF .
> 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
>    adequate?
>
> 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.
>
> Thanks
>
> Bruce
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>

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