Click-wrap licenses (RE: slashdot post)

Lawrence E. Rosen lrosen at
Mon Aug 5 14:53:58 UTC 2002

This is a valuable suggestion for ensuring that a licensee cannot claim
warranty protection against a licensor; since the licensee clicked to
accept the license, he cannot go against THAT licensor to claim warranty
rights.  If a downstream licensor doesn't require click-wrap, THAT
licensor may not be able to disclaim warranties effectively.  That's his
own fault.

But it doesn't work when a license is not sublicenseable (as often
happens with patent grants), when the license contains a defensive
suspension clause (as is the case with the MPL), and when it is the
licensor rather than the licensee who seeks to enforce the terms (as for
a venue/jurisdiction clause or an arbitration provision).


> -----Original Message-----
> From: David Chan [mailto:david at] 
> Sent: Monday, August 05, 2002 7:48 AM
> To: license-discuss at
> Cc: david at
> Subject: Click-wrap licenses (RE: slashdot post)
> [ David is not a license-discuss subscriber.  He sent the 
> following message to OSI.  With his permission, I'm 
> forwarding it to the list. -russ ]
> It is possible to have a click-wrap without putting anything 
> in the license.  For example, I could distribute BSD-licensed 
> software only to people who click though to agree that I am 
> not responsible for any flaws in that software.  Each 
> licensee would then be free to redistribute the software 
> under the BSD licence - with or without a similar click-wrap, 
> at their choice.
> This would give me some protection from legal action from the 
> people whom I distribute the software to.  It would not give 
> me protection from legal action from people receiving that 
> software when it is redistributed, since they might not be 
> required to agree to a click-through, but my potential 
> liability to them should be less anyway, because I did not 
> provide them with the software.
> I hope this is of some use - of course, without further 
> details, it's hard to know whether this relates to the issues 
> the submitter had.
> David
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