Legal soundness comes to open source distribution

[Rod Dixon]

Your points have answered a couple of questions. If we look at this issue
narrowly, it makes sense to say that clickwrap should not be a mandatory
requirement of the OSD, but could be approved as appropriate for an open
source licensor. The point being that there is nothing extraordinary about
clickwrap/click-through method itself that sustains mutual assent; rather,
there are many ways to accomplish this task that are more appealing as a
practical matter. In that light, there are a number of ways to disclose a
warranty disclaimer in a manner that best ensures that the end-user receives
notice/consent.

It is difficult to frame the warranty disclaimer issue abstractly and
independently of the license because one walks from one potential quagmire
to another despite the fact that a specific instance is probably a great
deal less complicated. The bottom line is very close to how the discussion
sees to have begun. If an open source licensor distributes software via a
website, the license/warranty disclaimer/contract/ should make its way to
the potential licensee in a manner that the netscape license in the
smart-download case did not. Click-through dialog boxes seem to offer a
level  of assurance that a court might agree with the licensor that mutual
assent  is indicated.

Clickwrap is not the only way to show mutual assent. More practical measures
are certainly possible so I would agree that we should not get too affixed
to clickwrap when less budernsome, but equally effective measures can be
adopted.

Should the OSD mandate a clickwrap measure? I agree with those who say no,
but I would not undermine the importance of mutual assent when it is
relevant. License drafters should be aware of the importance that contract
formation rules have on the enforceability of the license regardless (and
independent) of the terms.

Is mutual consent relevant for warranty disclaimers only? I think this is a
difficult question in the context of software licensing, but viewing the
matter simply as a generic issue, my answer is: since an "AS IS" disclaimer
is ostensibly not a promise of anykind, the effectiveness of the  "AS IS"
notice is likely to be controlled by consumer protection laws, rather than a
genuine issue of copyright licensing (i.e. copyright law or contract law).
Anyone with a consumer protection law background?

I have made no further comment on the philosophical issues since they seem
to raise the stakes of disunity more than the legal issues.

Rod




----- Original Message -----
From: "Bruce Perens" <bruce at perens.com>
To: <bruce at perens.com>; <lrosen at rosenlaw.com>; <rod at cyberspaces.org>
Cc: <brian at collab.net>; <license-discuss at opensource.org>
Sent: Saturday, August 03, 2002 5:20 PM
Subject: Re: Legal soundness comes to open source distribution


> Bruce Perens:
> > 1. Is a simple warranty disclaimer that does not require agreement
> >    adequate?
>
> From: "Rod Dixon" <rod at cyberspaces.org>
> > 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 is mostly an issue of practicality - and practicality is what
> drives many OSD questions.
>
> Debian, for example, has some 8000 packages, and a typical system
> will have 1000 to 3000 of them, some people install the whole kitchen
> sink which is probably around 6000 packages once package conflicts
> are resolved.
>
> The packages are produced by some 800 different package maintainers
> who are not employees of Debian and are not under the orders of any
> corporation. Of course there are many different owners for the software
> that is packaged.  It's not clear that Debian is the warrantor, rather
> than the package maintainers and the copyright holders. There are at
> least 100 variations on the licenses, both different license versions and
> different entities offering the same licenses. If even one one-hundredth
> of the packages required click-wrap, it would not be practical to present
> them all.
>
> Imagine clicking through 30 licenses during an install. There would be no
> reasonable expectation that the installer had actually read the text of
all
> of those licenses, which defeats the purpose of click-wrap. The same issue
> comes up in other venues, such as download sites, and applies to all other
> distributions, Red Hat, and so on, although most distributions are
> smaller than Debian and may have employees doing the packaging.
>
> The practical alternative is to present _once_ that there are licenses,
> that they in general disclaim warranties and that thus you should have
> no expectation of warranty, where you can find them, and the fact that
> since you have source you can perform your own due diligence.
>
> > This seems to run counter to the purpose of drafting terms.
>
> Only if you are taking a vendor-centric view. Vendor-centric licenses
> are drawn with maximum possible terms to protect the vendor. Open Source
> licenses are drawn to protect the vendor as much as possible while still
> being practical and fair to redistribute and deploy throughout a broad
> community of users and derivative developers who are not motivated to
> accept an odious license. That means that we deliberately make some things
> easy - for example the act of copying and redistributing a software
> distribution, and installing and using that distribution. We may reduce
the
> software producer's capability to defend themselves, by a reasonable
amount,
> in order to achieve those goals.
>
> Thanks
>
> Bruce
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
>

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