Legal soundness comes to open source distribution

Carol A. Kunze ckunze at
Wed Aug 14 03:30:02 UTC 2002

Russell Nelson wrote:

> [ Catching up on mail from ten days ago ]
> Carol A. Kunze writes:
>  > Here is the theoretical difference between proprietary and traditional (GPL,
>  > BSD) free software.   With the former the user agrees to a license and does
>  > not get title to the copy of the program.  Without agreeing to the license
>  > (and the use restrictions in it), the user has no legal right to use the
>  > copy of the software that they possess but do not own.  Basically, its a
>  > license transaction where the user has no ownership in the copy of the
>  > software they possess.
> My understanding is that, if you have legally acquired a copy of the
> software, you have the right to run it.
> Absent a contract otherwise, a user can do anything they want to their
> copy, including use it, modify it, give it away, or resell it to
> someone else.

Berstein says - "In the United States, once you own a copy of a program, you can
back it up, compile it, run it, and even modify it as necessary, without permission
from the copyright holder. See 17 USC 117. "

You have to OWN the copy.   When I say that in a proprietary license the licensor
reserves title to the copy, I am saying the licensor takes the view that the user
does not OWN the copy.  The payment that is made is for a license to USE the
software.   So copyright rules that apply to OWNERS of copies do not apply if the
copy of the software is still owned by the licensor and merely licensed to the
user.   This is the legal theory under which a proprietary licensor operates.  I am
not saying I think it should be this way, I am just explaining the legal foundation
for this approach.   It's the difference between buying and renting a house.   If
you buy a house you can do what you want with it, if you rent it you only get the
rights your lease give you.

> So why form a contract, then?  To get a warranty disclaimer.  To get
> the recipient to agree that they lose their patent grant if they sue
> for patent infringement.
> If we can get those things without a contract, that would be a perfect
> world.
>  > > The question here is whether we should amend the Open Source
>  > > Definition so that it is clear whether click-wrap licenses are
>  > > allowable or not.  We could go either way, but we want to hear from
>  > > you first.  Your opinions solicited, and engaged!
>  >
>  > OSI has already blessed licenses which are intended to be agreements or
>  > contracts (see IBM license), so I'm confused about what the point is
>  > here.    And why OSI definition would have to change.  Am I missing
>  > something?
> They're not enforcable, at least as I understand it.

I'm afraid they are.

I still don't understand why there is this discussion about clickwrap when OSI has
already OKed licenses which are contracts.   Clickwrap vs. shrinkwrap is just a
question of how the license is executed - that is, what mechanism the parties use
to agree to it.   Does the user click an "I agree" button online (clickwrap), or
get a copy of the license in the box with the right to return if they don't like
the terms (shrinkwrap).

I still do not understand why the OSI definition would have to change.  Why is the
requirement for clickwrap any different from those licenses which OSI has blessed
and which in fact are intended to be agreements?   Can someone clue me in here?


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