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

[Carol A. Kunze]

Rod Dixon wrote:

> 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.

I think this last sentence is right - but it depends not only on the particular
license, but also on the intent of the parties.   The GPL "could" be a contract,
if the user were asked to agree to it. The question is, do the parties intend to
form a contract.    If the user is not asked to agree, the GPL is a permission
notice that is not intended to establish mutual contractual obligations, but
rather to let the user know the conditions under which she is permitted to
exercise certain of the exclusive rights of the copyright owner.   The legal
result is that the user has an estoppel defense against a claim of copyright
infringement to the extent of the permission granted.

To the extent the conditions are limited to what the copyright owner can grant -
you can make copies, you can modify and distribute persuant to certain
conditions - the permission approach should work.    Anything NOT within a
copyright's owner's exclusive right to grant (like choice of law, choice of
forum) cannot be the subject of a unilateral permission notice.

So, this gets us to the warranty disclaimer.  UCITA requires that a disclaimer
be agreed to.  As written, the GPL alone is insufficient to do that.   There is
no language which states that a mere user of the software agrees to the warranty
disclosure.   If the parties do not intend to contract, but a contract is needed
to disclaim, then the disclaimer is ineffective.

However, back in 1991 when the GPL was written UCITA did not exist, and the law
was less clear.

The problem is that the GPL has not kept up with changes in the law.  It was
easier to take the position in 1991 that it was not a contract because there was
substantial doubt that terms not presented before the transaction could form the
basis of a contract.  ProCD and UCITA changed that.  In a perfect world, the GPL
would be updated to ensure that the intent to NOT form a contract is clear.

Regarding enforcement, the user cannot enforce a non-contractual GPL.  Only the
copyright owner can do that.  So if the distributor does not in fact make the
source code available, the user can only notify the copyright owner, who can
bring an infringement claim.

Carol










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