Legal soundness comes to open source distribution

Rod Dixon rod at
Wed Aug 14 05:36:48 UTC 2002

I want to summarize what we have discussed on click-wrap because the issue
is significant from the standpoint of the legal standing of open source
licenses, and so I can include proposed responses in our research project on
the OSD.

It is my understanding that the issue initially involved the approval of a
license, not a change to the OSD. The discussion of click-wrap then
considered whether the fact that adding indicia of mutual assent to website
agreements like open source licenses (e.g., a mouse click from the user)
might have adverse implications for the position that open source licenses
are "non-contractual" licenses. There was also some discussion concerning
whether click-wrap conditions imposed on downstream or sub-licensees is
practical (it may be difficult to implement). Finally, some raised the
question whether the click-wrap condition is doomed to failure in cases
where distribution is packaged with multiple programs carrying distinct

Is this a fair summary?


----- Original Message -----
From: "David Johnson" <david at>
To: "Carol A. Kunze" <ckunze at>
Cc: <license-discuss at>
Sent: Wednesday, August 14, 2002 12:00 AM
Subject: Re: Legal soundness comes to open source distribution

> On Tuesday 13 August 2002 08:30 pm, Carol A. Kunze wrote:
> > 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.
> > ... 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.
> This is where the big disconnect occurs between the user and the
> manufacturer/licensor. When I rent a house, I KNOW that I am renting a
> But with software I have no clue. I have undergone every single motion of
> purchasing a product, obtained a sales receipt that itemizes a copy fo the
> software, yet I do not own it. Moreover, I don't even know this fact until
> the first time I try to use it.
> I am of the archaic and jurassic opinion that law that cannot be
understood by
> the average layman is bad law. When the average consumer thinks they are
> buying a copy of Windows when they are not, because the law says they
> haven't, then the law is an accomplice to fraud.
> Skipping back to the middle of the last paragraph...
> >The payment that is made is for a license to USE the software.
> >From where I sit, it seems like the user is purchasing the right to VIEW
> license. Only when they actually view the license and subsequently agree
> it, do they gain the right to use the software.
> > I still do not understand why the OSI definition would have to change.
> > 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?
> The main issue in my mind is not the simple click-wrap. That already
exists in
> several forms for several Open Source products. Instead, the real issue
> me) is whether an Open Source license can require derivative works or
> downstream distribution to also use click-wrap.
> --
> David Johnson
> ___________________
> pgp public key on website
> --
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