Legal soundness comes to open source distribution

David Johnson david at
Sat Aug 3 21:17:57 UTC 2002

On Saturday 03 August 2002 01:11 pm, Rod Dixon wrote:
> 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.

I'm wondering what challenges an Open Source developer faces without a 
click-thru license. What risks does he face if it is ruled that the user did 
not assent to the license?

For a proprietary developer, the risks involve critical reviews of the 
software being published, someone reverse engineering the software and 
discovering how it works, and the sale of used software under the first sale 
rule. But as Open Source developers we don't care about that stuff.

For an Open Source developer, the risk is ONLY in regards to getting sued for 
damages. We don't want to get sued so we include warranty and liability 
disclaimers in our licenses. But it has not been made clear to me that mutual 
assent is necessary to disclaim warranty, or whether mutual assent is 
sufficient to remove liability.

David Johnson
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