Open Source Click-Wrap Notice
Carol A. Kunze
ckunze at ix.netcom.com
Sun Aug 11 14:57:14 UTC 2002
I think an umbrella type contract between the distributor and the end user would
be effective only with regard to claims between those two parties. However, if
the numerous licenses in the files do not purport to create a contract, there is
no privity of contract between the user and the developer and so no warranty
This is one of the many reasons I prefer the non-contractual license. It
limits the potential warranty liability to that between the immediate
distributor and the user. So any developer only need worry about the people to
whom she distributes. And if the software is being acquired for free - there
probably isn't even that worry.
The issue of a tort or product liability claim - for which privity of contract
is not needed - is a different matter. However, you need more than just a bug
or defect for this type of claim. Generally, the product has to be
"unreasonably dangerous for its intended use". And there are other elements
needed to make a successful claim (duty of care, breach of that duty or
negligence, personal injury or property damage). I don't think the chance of
this type of claim for garden variety open source programs is very high.
I have always favored the view that mandatory warranties on open source software
would be a first amendment violation. The point I make with respect to
warranties is that the issue is not whether there should be warranties on open
source software. The issue is whether there should be open source software.
And I would extend that idea to any attempt to impose product liability on
developers. In this regard, open source software is much more like "published
informational content" (the information in a book).
For instance, take a mushroom cookbook that mis-identifies a deadly mushroom as
an edible one. Even if someone dies, there is no liability because of the
interest in protecting the freedom to disseminate information. Basically, if
there were liability - there would be no more books on mushrooms - or none that
anyone could afford once lawyers fees, and insurance were factored in. And
likely the insurance companies would refuse to insure. So information on
mushrooms would pass out of existence. The same would apply to open source.
If developers are sued they'll stop writing free software. The idea of
imposing liability for potentially millions of copies of a program for which the
developer received no compensation is absurd.
Please note - this is theory, not current law.
Bruce Dodson wrote:
> Er, I agree. :-). But, as an open source author, does the limitation of
> liability protect me? The contract that the end user clicked is between the
> distributor and the end user; does it protect the original developer, who is
> a third-party? (Or is the distributor is seen as an agent, facilitating a
> contract on behalf of each developer?)
> >Good, common sense. That is why I suggested in the notice that you
> >there be a simple procedure to review all the licenses...
> >OSI-approved licenses. For many of us, that may be all we need to know
> >without reviewing each license in detail. We will click on "I AGREE"
> >knowing that we are agreeing to something reasonable. But we will still
> >license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
> Chat with friends online, try MSN Messenger: http://messenger.msn.com
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
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