why does allowing click-through licenses "just feel wrong" to me?

Carol A. Kunze ckunze at ix.netcom.com
Wed Aug 7 19:55:07 UTC 2002

Brian Behlendorf wrote:

> Maybe it was the initial Subject line, "Legal soundness comes to open
> source distribution", which did little to endear me to the topic - as if
> those of us distributing open source software today are not "legally
> sound".
> . . .
> Furthermore, if there are legals trends that work against the Open Source
> community's interests, such as the ever expanding black hole of
> tort/liability law, the OSI Board should be showing leadership by opposing
> such a move, by establishing norms in the industry for a court to look at
> when trying to make a decision on a difficult case.

A lot of the emails preceeding this one have surprised me by the seeming
support for contractual open source licenses.   The law evolves all the time
to reflect new issues, new practices and new transactional forms.   My
personal view is that the law should evolve to reflect the practices of the
open source community, rather than the community evolving to fit into a legal
framework based on a proprietary model.

I also believe that a prime problem of the non-contractual open source license
is the lack of transparency over the characterization of the transaction.   In
other words, the legal industry, with the exception of Eben Moglen, thinks the
GPL is a contract.   Had it been clear for the past 10 years that the GPL is a
permission notice and not an agreement, legal analysis would have been written
explaining it, analysing how the law applies, etc.  Instead, legal articles
have generally assumed it is a contract and analyzed it as such.

A lot has changed in the law since 1991 (the date of the current version of
the GPL), and the GPL should be evolving in response to it - but in the
direction of strengthing its non-contractual status, not by adopting
proprietary license practices.

BTW, UCITA now acknowledges notice licenses based on IP rights that are not
contracts and notes that UCITA does not apply to the terms of such a notice.
The language is:

"Section 105(d) [Intellectual Property Notices] This [Act] does not apply to
an intellectual property notice which is based solely on intellectual property
rights and is not part of a contract. The effect of such a notice is
determined by law other than this [Act]."

The warranty issue is another problem.  It is accurate that UCITA requires the
user to "agree" to a warranty disclaimer.  Consequently, efforts regarding
UCITA focused on getting a warranty exemption for open source and did succeed
in getting an exemption for non-commerical transactions, although the language
has some weaknesses.

However, the warranty disclaimer issue can be dealt with, without a full-blown
clickwrap, shrinkwrap license.   There is also the possibly of opposing
adoption of UCITA in state legislatures.

A lot of the corporate open source licenses are intended to be contracts, and
I don't see a problem with that.  But I also don't see why the more
traditional open source licenses that are not intended to create contractual
obligations should change.

I also agree with Drew and Brian -  it feels wrong and it makes me sad.


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