Open Source Click-Wrap Notice

Carol A. Kunze ckunze at
Wed Aug 7 20:09:23 UTC 2002

Typical proprietary licenses reserve title to the copy of the software.  So the
user does not "own" it and Section 117(a) of the Copyright Act (an owner of a
copy of software can make a copy if essential to use of the program) does not
apply.  Consequently, proprietary licensors license, and in some cases
restrict, use of the software.  The user pays for the license to use, not for
title to the program.

Although open source licenses often do not address the issue of title (i.e.,
who owns the copy), the transcation should be treated as a sale of a copy, with
the user becoming the owner of that copy of the software.  Hence, Section
117(a) would apply and no authorization is needed to use the software.  Note
that the GPL does not address use - it isn't necessary.

BTW, it is possible to have a sale of something, and still have the buyer agree
to use restrictions.  Its unusual, but it has been done and upheld by the


David Johnson wrote:

> On Tuesday 06 August 2002 03:12 pm, Lawrence E. Rosen wrote:
> > You understand and agree
> > that the installation, use ... of this software may be prohibited
> > by law unless you agree to the applicable licenses.
> Huh? I keep seeing this assumption that there is a law prohibiting the
> installation and use of software, but I can't find any facts on the matter.
> Can anyone provide me with evidence that the author can prohibit the
> recipient from executing the software or its installer? What is the legal
> foundation for the author to claim the exclusive right of use?
> Inquiring minds want to know...
> --
> David Johnson
> ___________________
> pgp public key on website
> --
> license-discuss archive is at

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