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

Carol A. Kunze ckunze at ix.netcom.com
Thu Aug 8 13:37:25 UTC 2002

Rod Dixon wrote:

> 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.

I do not rely on the non-negotiated status.  The issue is whether the parties
INTEND to create a contract.   Does the person who distribute the software with
the GPL in the files intend to establish a contractual relationship so that
breach of the terms of the GPL would give rise to a claim (and damages) for
breach of contract.  Or is the intent to grant unilateral permission to any user
(regardless of whether the user obtained the copy of the software from the
copyright owner or a third party distributor) to copy, modify, distribute, where
breach of the conditions gives rise only to a claim for copyright infringement.

> 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.

Most copyright licenses are contracts.   I use permission notice to refer to a
unilateral grant of permission to exercise certain of the copyright owners
exclusive rights, which does not give rise to mutual contractual obligations.

> 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;

As I said earlier - the GPL "can" be a contract if the parties so intend and
there is some indication that the user had the opportunity to review the terms
and agree to them.  If the GPL is just placed in the files, and there is no
agreement to it, it would be very difficult to enforce the terms through a claim
for breach of contract.


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