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

[Rod Dixon]

I think we agree generally, but I do not think the GNU GPL can be cabined
off from how we view other web site licenses because the facts do not seem
to favor that view.  First, we all know that in 1991, all "web-based"
licenses are similarly situated; no GUI point-and-click issues in 1991.   I
would add that although you *might* say the law was less clear in 1991 than
it is today (this is debatable since ProCD has not been followed by some
courts, is viewed as flawed by many, if not most, commentators, and is not
binding outside the 7th Circuit; moreover, UCITA has not had the clarifying
impact that some had hoped since states are not jumping on the UCITA
bandwagon), software and hardware makers used software licenses before 1991.
Stallman makes note of this fact in his book, and this common practice is
what is likely to have encouraged his own thinking about the use of
licenses. There is also caselaw that predates 1991 on software licensing.
Consequently, I think the argument that the GNU GPL is not contractual
because certain areas of the law was different or less clear in 1991 than
today is unconvincing on the facts. The argument you made seems to be based
on the non-negotiated status of the GNU GPL. If so, I want to be careful to
distinguish my point about consent. To prove consent, you need not show that
the license/contract was negotiated. Non-negotiated contracts do exist and
include many mass-market software licenses. If this is not your point, then
I am unclear what you mean when you say "permission notice;" you could mean
copyright license, but that would make your argument a bit circular.

I am not advocating that the GNU GPL be enforced as a contract, and I
certainly do not agree that the original drafter/licensor of the GNU GPL
ought to proclaim that the license is not a contract to avoid the issues we
are discussing. FSF could use its license(s) strategically, which may avoid
confronting these issues in court. Since the GNU GPL is copied by others as
if it were a form contract, the enforcement issues are more likely to
confront those who copy it and use it less strategically than FSF has done.
One could copy the GNU GPL, post it on their website, distribute free
software under the license and. under a pertinent case, attempt to enforce
one of its terms under a contract  theory. In that circumstance, a court
might have to address the contract formation issue;  I think the impact of a
decision upon the open source community is serious enough under some
potential circumstances that we should consider these issues with a great
deal of forethought.

Rod

----- Original Message -----
From: "Carol A. Kunze" <ckunze at ix.netcom.com>
To: "Rod Dixon" <rod at cyberspaces.org>
Cc: "Brian Behlendorf" <brian at collab.net>; <license-discuss at opensource.org>
Sent: Thursday, August 08, 2002 1:21 AM
Subject: Re: why does allowing click-through licenses "just feel wrong" to
me?


>
>
> 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
>
>
>
>
>
>
>
>
>
>
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
>

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