Legal soundness comes to open source distribution

Mahesh T Pai paivakil at
Sun Aug 4 07:18:46 UTC 2002

  Russell Nelson wrote:

>... it looks like a license without
>click-wrap is weaker at protecting your rights.

By definition, Open Source *licenses* permit anybody to re-distribute 
without any explicit permission from the author.  As has already been 
pointed out, if the user does not accept the (open source) license, he 
would be governed by the statute, and cannot re-distribute or modify my 
work.  Other licenses attempt to restrict the user from exercising even 
the small rights available to him under the statutory law.  So what do 
we really mean by "my rights" under an open source license?

Under the Open Source definition, with respect to law of copyright, I 
permit everyone to re-distribute my work and retain only a small bundle 
of rights remains with me, called the "moral rights".  (example - US 
Code Title 17 Sec 106A).  Every thing else excepted by open source 
licenses do not fall within the realm of copy right and come within the 
scope of product liability law or law relating to sale of goods.

Issues relating to freedoms under the law of copy right apart, what is 
effectively "protected" by the software license are not "my rights", but 
"my liabilities" under the laws relating to product liability and sale 
of goods.

>The time is coming when you won't be able to distribute software
>unless you have presented the license to the user and their assent is
>necessary to access the software.  Even free software.  
What the law and the courts really say, when they insist on 
"manufacturers" "producers" and "dealers" ( and other similar entitles) 
informing the consumer and obtaining their assent about the warrant and 
its clauses, is that  the user / consumer should be aware of the 
disclaimer, (that is, if the law permits such disclaimers at all).

The primary (but often unspoken) reason for imposition of "product 
liability" is there is no way the user could find out why a particular 
product functioned the way it does.  Even if he could, various laws 
relating to intellectual property prevented the user from making 
modifications to the product.  Obviously, this is not the case with Open 
Source Software.  The source code is out there, and it is for the user 
to access it, and find out whether the software will do what he wants it 
to do.  Or else, I will do it for him, of course, for a fee.

No court will impose a liability on creators of software who have no 
inkling about the use to which the software is being put to, unless 
either (a) consideration passes between the user and the creator or (b) 
the doctrine of injurious reliance is attracted ("I suffered a loss 
because I trusted your promised donation and incurred an expense"). 
 Even in cases where exceptions to the principles of consideration or 
privity apply, liability would not be fastened unless the person sought 
to be held liable knew about the risks to which the user is exposing to 

In other words, if the consumer intends to hold me liable for use of my 
software, (a) he should pay me for using it - the principle of 
consideration (c) he should obtain the software from me - the principle 
of privity.  If he wants to hold me responsible on the basis of 
injurious reliance, there should be some representation by me to him 
regarding capabilities of the software.  

Of course, when law prohibits exclusionary clauses in contracts, nothing 
- neither click wrap, nor a signature in ink on a paper - can exclude my 

>The question here is whether we should amend the Open Source
>Definition so that it is clear whether click-wrap licenses are
>allowable or not.  We could go either way, but we want to hear from
>you first.  Your opinions solicited, and engaged!
What should be debated is not whether Open Sourced software should be 
covered by "click-wrap" or not, but whether open source software should 
be covered by product liability or not.  I feel that the answer is "no". 
 Except in countries where statutory provisions exist prohibiting 
contracts with exclusionary clauses, chances of an author being fastened 
with product liability for his open sourced work are very remote.  

What is really necessary is a campaign to take Open Source Software 
outside the scope of (compulsory) statutory product liability.

Mahesh T Pai.

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