Legal soundness comes to open source distribution

Rod Dixon rod at
Wed Aug 14 07:14:25 UTC 2002

Larry's comment sums up my point quite well when he states:
> Whatever else open source licenses do, they do not explicitly make a
> licensee the "owner of a copy."

The implications of the licensee not being an "owner" of the copy of
software he/she has possession of go directly to Bernstein's point. At any
rate, in the context of open source licensing, Bernstein's argument requires
understanding how section 117 relates to section 109 with respect to the
status of the end-user/licensee. The matter is not pertinent to this
discussion, but someone raised the issue.

> Regardless of this confusing point, why does this make click-wrap
> "problematic"?

That's a good question. In my previous post, I attempted to summarize the
arguments presented because I had the same reaction.

I think a few people had a near-visceral reaction to the very idea of
click-wrap and the contractual-open-source-license. Even so, I have repeated
that click-wrap is but one way to show an indicium of mutual assent.
Although in unusual circumstances there may be practical difficulties
implementing a click-response for user input, the opposition to the concept
of mutual assent seems over-blown.  If dialog boxes are too confusing, there
are other ways to achieve the same result. I can imagine some strategic
advantage denominating an open source "whatever" as a copyright license
rather than a contract, but I am befuddled by the opposition to what
ostensibly are simple steps to decrease the likelihood of a successful
challenge to the validity of the license.

license-discuss archive is at

More information about the License-discuss mailing list