Open Source Click-Wrap Notice

David Turner novalis at
Wed Aug 7 23:49:31 UTC 2002

Larry Rosen wrote:
> [Double quote arrows are from an un-named source]
> > Only thing we are interested in is protecting ourselves against
> > product liabilities.  If there is consensus on this, then why not
> > agree to a uniform disclaimer clause, and present the user with
> > this disclaimer alone at the beginning of install process?
> That is not the only thing I am interested in.  I am also interested
> in giving my open source clients the weapons they need to enforce
> their open source licenses.  I'm not sure that concensus has much to
> do with it, since each licensor has the right to protect his
> interests as strongly as he wants to.  The only thing that *this*
> concensus will do is discourage some companies from releasing their
> code under open source licenses.

I feel that this "weapon" is unnecessary for three reasons -- two
legal, and one practical.

The first legal reason is that, at least from my reading of UCC, any
act (not merely signing or clicking) can be used to indicate
agreement.  In some Free Software licenses, distributing and/or
creating derivative works of the software indicates acceptance of the

The second legal reason is that, without permission from the copyright
holder (and excluding fair use), nobody is permitted to distribute or
create derivative works of a copyrighted work.  So, even without a
clickwrap, a copyright holder can sue under copyright law.

The practical reason is that I've helped to enforced the GPL on a
weekly basis for six months.  In 90 percent of these cases, we didn't
even have to mention lawyers.

Clickwraps attempt to bring Free Software licenses into the realm of
contract law.  This is harmful for two reasons.  One is the fairness
reason discussed below.  The other is that knowing your rights under a
contract may require specialized knowledge of the contract law of some
random juristiction.  Copyright law is more-or-less uniform, due to
the Berne Convention.  And it gives all the enforcement that we've
ever needed.

> > [A difference of opinion may arise when people wish to include
> > arbitration clauses also.  Personally, I am against use of
> > arbitration clauses in any product meant for mass use.  It is
> > simply not fair to ask a consumer situated in India, who
> > downloaded a software from a server in australia to arbitrate his
> > dispute in California, US. (uh, I went off the subject)]
> Ahhh, the old "it ain't fair" argument.  Take that one to the judge.
> And wait while the judge cites 9 U.S.C. § 4, which provides that "a
> party aggrieved by the alleged failure, neglect, or refusal of
> another to arbitrate under a written agreement for arbitration may
> petition any United States district court which, save for such
> agreement, would have jurisdiction under Title 28, in a civil action
> or in admiralty of the subject matter of a suit arising out of the
> controversy between the parties, for an order directing that such
> arbitration proceed in the manner provided for in such
> agreement...."

As an institution which is interested in serving the public, it makes
sense for OSI to care about issues of fairness, whether or not the law
allows some specific unfair conduct.  Clause 5 of the OSD prohibits
"discrimination against persons or groups."  While requiring
arbitration may not be strictly discriminatory, it is certainly not

-Dave Turner
GPL Compliance Engineer

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