A practical example of a click-wrap license

[Lawrence E. Rosen]

Please consider the following scenario:

I create a program that I want to release to the world under an open
source license ("KillerApp", or "KA").  I want to provide all the rights
to the KA code that the OSD mandates, including the rights to use, copy,
make modifications, and distribute.  I also publish the source code.

The KA license contains not only a copyright grant but, because I own an
important patent, contains a patent grant to "make, have made, use,
practice, sell, and offer for sale, and/or oterwise dispose of " the KA
code and modifications.  (See Mozilla Public License version 1.1,
section 2.1(b), for an example of such a patent grant.)

I want the following two provisions in the KA license.  First, I want
defensive suspension, meaning that if any user sues me for patent
infringement, his license to "make, use or sell" my KA code is
suspended.  (See Mozilla Public License version 1.1, section 8, for an
example of such a provision.)  Second, I want an arbitration provision
so that I can ensure that any disputes about this license or about the
defensive suspension of the license can be resolved in California
without expensive court proceedings.  (See Specht v. Netscape for a
description of such a provision.)

In order to satisfy my attorney's concerns that the above provisions be
enforceable, I am instructed to ensure that there is a clear
manifestation of assent to my license.  (My attorney has read Specht v.
Netscape.)  I wish to do this by a click-wrap procedure that is invoked
upon installation (or first use) of the KA program.  I provide notice
that anyone who is not completely satisfied with the license terms may
return the "free" software to me for a complete refund.  

In order to ensure that this manifestation of assent procedure is always
effective, I want to include a provision in my license requiring my
distributors to retain that click-wrap procedure -- along with my
copyright and patent notices -- when they distribute my program.

Is my KA license open source?  Should the OSD prevent me from getting
OSI certification for KA because I included a click-wrap requirement in
my license?

Should I care that some users will click past my click-wrap notice
without reading my license under the mistaken impression that this makes
my license unenforceable against them?

Should I care that some distributors, perhaps including Debian, refuse
to include KA on their distribution disk because they don't like
click-wrap licenses?

Please note that I have purposely avoided any discussion about warranty
provisions in my license.  Leave such considerations out of your
responses.

/Larry Rosen

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