click once, accept all licenses.
Mahesh T Pai
paivakil at vsnl.net
Mon Aug 12 12:03:17 UTC 2002
Carol A. Kunze wrote:
>I don't think this can work. A third party - in this case the distributor
>- cannot cause a contract to be entered into between two parties, one of
>whom is not "present."
Yes. This I have pointed out earlier. And how can a person who is not
present be saddled with liability?
>A developer can put a license in a program that will show up on the screen
>and require clicking on "I agree" before installation. The developer has
>created the license, has developed and controlled the execution by the user,
>and if the software is subsumed within a larger program as long the as
>license still pops up when you start to install this module, I think a
>contract can be created.
Let us get it clear. What do we want? Is it (1) a contract? Or (2)
do we want to make it clear to the user that he has (a) the right to
redistribute and modify the program *and* (b) the developer is not
liable for the defects in the program?
If it is 2 that we want, there is not need for a contract.
>There is only contractual warranty liability if there is a contract. So this seems to be striving to create the very contract that would give rise to the risk in the first place.
>Mind, I don't know the law in India.
I regard the whole issue of click wrap licenses as a question of product
liability, not of contract formation. The difficulty with software
licenses is that they would have to be valid all over the world, accross
national boundaries. I understand that in most countries, there are
specific statutes, whch prohibit the manufacturer from disclaiming
certain liabilities with the consumer. In India, we have the Consumer
Protection Act, and the liability is only towards consumers who have
paid for the product/service.
"Lawrence E. Rosen" wrote:
>Some licenses are sublicenseable, meaning that the
>distributor has been given the right to offer licenses directly from the
>distributor to the licensee. Other licenses are non-sublicenseable,
>meaning that a license passes directly from the original author/licensor
>to the licensee, even though the distributor handles the distribution
>and exchange of the software.
On one hand, the recipient is permitted to redistribute, and on the
other hand, you say that the license is not sub-licenseable. I feel
that the no-sublicensing clause in a license which permits
redistribution, (including yours) means that the distributor is directly
liable to the user. In a court of law, your intentions are not relevant
- only the words used by you are. Otherwise, are not the terms
permitting redistribution and the insistence on not changing the license
By excluding sub-licensing, and permitting re-distribution, the
developer ensures that there is no privity between himself and the end
user. And yes, if the developer permits sub-license, the distributor
becomes an agent of the developer, and hence the developer becomes
liable to the user, even in absense of direct contact between them.
I feel that instead on highlighting issues like contract formation,
acceptance of disclaimer notices, etc, like proprietary vendors, we
should highlight (a) availability of source code and (b) the user's
freedom to modify the source code. I think that it is absence of these
two freedoms which created the concept of product liability in the first
This is what I have in mind:-
PLEASE NOTE THAT SOURCE CODE FOR THIS SOFTWARE IS AVAILABLE AT
YOU ARE FREE TO MODIFY IT SUBJECT TO ABOVE CONDITIONS AND IT IS FOR YOU
TO ENSURE WHETHER THIS SOFTWARE MEETS YOUR REQUIREMENTS. THE
< developer > IS NOT IN ANY WAY RESPONSIBLE FOR ANY LOSS CAUSED TO YOU
FROM YOUR USE OF THE SOFTWARE.
This puts the developer in a stronger position when faced with product
Mahesh T Pai.
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