Alternative to click wrap license

[Sunnanvind Fenderson]

Hi again,

"Lawrence E. Rosen" <lrosen at rosenlaw.com> writes:

> Thanks for your email.  I should have been clearer about the address to
> send to.  Its license-discuss at opensource.org.

Okay, thanks. I'm CC:ing them now in case someone wants to speak up
and agree with me. (Or disagree with me.)

> I appreciate your suggestions, but legally it just doesn't work that
> way.  As long as you intend to form a contract, you must have assent to
> the contract.

A contract was not at all what I intended in my suggestion, merely a
"reminder blurb" like most copylefted programs have, but one that also
mention patents.

> Merely presenting a summary of the terms won't work. 

It won't work if I want to present a "clickwrap contract" but I was merely 

> Not only that, but the summary may be (and in your case is)
> incomplete and inaccurate.

You may of course choose to modify the summary as you see fit. It was
modeled loosely after gdb's startup blurb.

> So a judge might conclude that your summary IS the license
> and ignore the real license.

That sounds a bit silly, to me. Unless I misread you, that's like a
judge starting Emacs and seeing the "you may copy this under certain
conditions, see COPYING for details" and concludes that she can set
the conditions herself and ignore the COPYING file.

> The click-wrap notice doesn't "enforce" the license.  It merely informs
> users of the existence (and location) of the licenses and gives them an
> opportunity to refuse or to accept the software under the license terms
> and conditions.  

Are you talking about your click-wrap notice here, or the "click-wrap
replacement dialog" I suggested? If your talking about yours, the "I
AGREE" and "indicate your acceptance" talk in the license certainly
seem like "enforcing" to me.

If users disagree with the patent license they must refrain to use the
program - lest they are in violation of patent law! A "clickwrap
contract" doesn't have to enter into it, and, in fact, only
complicates things, especially internationally (not all countries have
software patents).

If users disagree with the copyright license they must refrain from
distributing the program - lest they are in violation of copyright
law.

You use language like± 

"By clicking on "I AGREE" below, you indicate your acceptance of the
software programs included on this distribution under the terms and
conditions of the licenses applicable to each of them. You will be
permitted to install and use the software programs included on this
distribution only if you click "I AGREE" below. "

This is being disputed in some courts, accepted in some. It's unclear
what law it uses. Contract law?  Can I say "By reading this sentence,
you agree to obey me"? To what extent are clickwraps valid?

Clickwraps were introduced because those companies wanted to place
restrictions on the use of the program, with an EULA.

With free, open source software, we want to *reduce* restrictions.

Copyright law was too restrictive? Why, let's invent copyright
licenses like the GPL.

Patent law too restrictive? Why, let's invent patent licenses that
allow people to use the software without paying royalties!

> I recognize that many people in the open source movement wish the law
> were otherwise.  Wishing doesn't make it so.

Yeah, that's what licenses are for.

still hopeful to be of service,
Sunnan (if I sound rude it's cause I just spilled cucumber on my floor. ;) )

> > -----Original Message-----
> > From: Sunnanvind Fenderson [mailto:sunnanvind at fenderson.com] 
> > Sent: Thursday, August 08, 2002 8:39 PM
> > To: lrosen at rosenlaw.com
> > Cc: sunnanvind at fenderson.com
> > Subject: Alternative to click wrap license
> > 
> > 
> > Hi, would you please forward this to licence-discuss? I saw 
> > the draft on NewsForge, it said "send comments to 
> > license-discuss". license-discuss at what? What's the adress 
> > to the list? I found a list to the archive but the adress was 
> > not immediately obvious there either. I did read some 
> > messages on this topic.
> > 
> > I don't even know what software the discussion is about.
> > 
> > Anyway. I assume you already have a patent license shipped 
> > with the package that grants the users right to use (etc..) 
> > the program. (Have you seen the one at 
> > http://www.fsmlabs.com/openpatentlicense.html -- the creation 
> > of which the FSF was somewhat involved with?)
> > 
> > I also assume you have a copyright license (for example, the 
> > GNU GPL) shipped with the package.
> > 
> > Now, you don't need (and can't really have) a clickwrap that 
> > "enforces" these licenses. The copyright license is the only 
> > thing that allows users to distribute so they must agree with 
> > it or refrain from distributing. The patent license is the 
> > only thing that allows users to use so they must agree with 
> > it or refrain from using.
> > 
> > What you can have (and what might be useful) is a reminder 
> > screen, for example at install time, but at run-time works as 
> > well, that reminds the users about the lack of warranty, and 
> > that the program is copyrighted and patented, and where the 
> > users can find the applicable licenses.
> > 
> > You might want to read the GNU GPL paragraph 2c again for an 
> > example of this.
> > 
> > This doesn't have to be (shouldn't be) a click-wrap style "I 
> > agree" dialog. If I remember correctly, I think the windows 
> > version of freeamp had a dialog that said something like "You 
> > don't have to agree with this to use the software, but if you 
> > want to do things outside of what copyright allows, you can 
> > do it according to the terms in COPYING. By the way, this has 
> > no warranty, not even the implied..." and the dismiss button 
> > said "Cool!" instead of "I agree". (Your's could be more 
> > formal and just say "OK".)
> > 
> > Instead of a clickwrap, I suggest a dialog that says:
> > 
> > "This program is free software, licensed under the 
> > $LICENSENAME license, and you are welcome to change it and/or 
> > distribute copies of it under certain conditions.(Link to the 
> > copyright license.)  This program is patented under number 
> > #NUMBER, but you may use it without a royalty. See this (link 
> > to patent license text) for details. This program is provided 
> > without warranty, not even the implied warranty of 
> > merchantability and fitness for a particular purpose."
> > 
> > The dialog should have a single button that says either "OK" 
> > or "Close".
> > 
> > You could place this dialog where you would've placed the 
> > clickwrap notice, and in the "about" dialog.
> > 
> > ..............
> > 
> > Hopeful to have been to some help,
> > Sunnan.
> > 
> > This is not legal advice. Well, it's friendly advice and it 
> > happens to be about legal matters, but I'm not a paid laywer, 
> > I'm doing this because I'm interested in these issues.
> > 
> > 

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