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

Rod Dixon rod at cyberspaces.org
Thu Aug 8 01:28:33 UTC 2002

If we boil this discussion down to its bear bones, as they say, and leave
aside the click-through matter for the moment, I think I would agree with
many of the very compelling arguments made this week...especially those
directed to the need for open source adherents to take a more visible lead
in the advocacy of what ought to be the law that governs open source.  I do
not think, however, that it is noteworthy or quite correct to view open
source licenses as either contractual agreements OR copyright licenses; the
answer, it seems, is that both legal theories are applicable for strategic
and legal reasons.

I think I understand the reluctance to accept the contractual basis of an
open source license since it certainly makes good sense to exalt simple
rules over unnecessarily complex ones.  Even so, the preference for
simplicity cannot not disrupt our ability to parse distinctly legal
questions from open source policy questions. A copyright license may be a
simple grant of permissions, or it may be much more than that; in my
opinion, the correct answer does not exist in the abstract, but depends upon
the particular license.  For those who take the position of  "say it isn't
so" in response to those of us who state that open source licenses are
contractual, I earnestly suggest that a bit more evaluation of the argument
is warranted. Since the pertinent issue is not philosophical, but legal, we
must jettison the philosophical and think as lawyers do. (You needn't be a
lawyer to analyze a general question as lawyers do, but you must give the
lawyer the deference to show you how). The question that matters in this
context is this: what is at issue in the enforcement of the GNU GPL (or,
many, but not all, of the other open source licenses) if one or more of its
terms are violated/breached/infringed?

Although in some respects this is a difficult question to answer, in matters
relevant to our discussion the question requires consideration of the
particular claim. The GNU GPL certainly is a copyright license because it
does what a license does; namely, grant permission to do something (in
particular, certain copyright interests are granted). Since the GNU GPL sets
up a series of conditions in its grant clause(s), it is not difficult to
imagine a potential dispute concerning the scope of permission(s) in the
license.  Stated differently, a copyright license that grants permission to
publicly distribute a work only on the Internet may be enforced in a rather
straightforward manner since the licensor/copyright holder need not prove
that the licensee knew he/she was infringing to prevail on the merits. If,
however, the license contained provisions related to patent interests,
consumer protection matters, or other interests not within the bounds of
copyright  law, I would be perplexed to see a court not consider the
application of the UCC, common law contract, or another body of law aside
from copyright law, which, presumably would not aid the court in answering
such questions.

Where might such other matters appear in the GNU GPL? Let's start with
section 1, but my comment is not meant to be viewed as criticism of the GNU
GPL, but rather to highlight why I think some of its terms betray the notion
that it's just a simple copyright license rather than an agreement subject
to the rules of contract formation. How would copyright law resolve what an
"appropriate...disclaimer of warranty" is?

"1. You may copy and distribute verbatim copies of the Program's
source code as you receive it, in any medium, provided that you
conspicuously and appropriately publish on each copy an appropriate
copyright notice and disclaimer of warranty; keep intact all the
notices that refer to this License and to the absence of any warranty;
and give any other recipients of the Program a copy of this License
along with the Program.

You may charge a fee for the physical act of transferring a copy, and
you may at your option offer warranty protection in exchange for a fee."

Section 7 of the GNU GPL seems to provide compelling illustration of a
provision that could be subject to significant contract law litigation, if
its terms were at issue.

"7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License.  If you cannot
distribute so as to satisfy simultaneously your obligations under this
License and any other pertinent obligations, then as a consequence you
may not distribute the Program at all.  For example, if a patent
license would not permit royalty-free redistribution of the Program by
all those who receive copies directly or indirectly through you, then
the only way you could satisfy both it and this License would be to
refrain entirely from distribution of the Program."


> 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
> > community's interests, such as the ever expanding black hole of
> > tort/liability law, the OSI Board should be showing leadership by
> > such a move, by establishing norms in the industry for a court to look
> > 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
> to reflect new issues, new practices and new transactional forms.   My
> personal view is that the law should evolve to reflect the practices of
> open source community, rather than the community evolving to fit into a
> framework based on a proprietary model.
> I also believe that a prime problem of the non-contractual open source
> is the lack of transparency over the characterization of the transaction.
> other words, the legal industry, with the exception of Eben Moglen, thinks
> 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
> explaining it, analysing how the law applies, etc.  Instead, legal
> 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
> 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
> contracts and notes that UCITA does not apply to the terms of such a
> The language is:
> "Section 105(d) [Intellectual Property Notices] This [Act] does not apply
> an intellectual property notice which is based solely on intellectual
> 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
> user to "agree" to a warranty disclaimer.  Consequently, efforts regarding
> UCITA focused on getting a warranty exemption for open source and did
> in getting an exemption for non-commerical transactions, although the
> has some weaknesses.
> However, the warranty disclaimer issue can be dealt with, without a
> 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,
> 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
> obligations should change.
> I also agree with Drew and Brian -  it feels wrong and it makes me sad.
> Carol
> --
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