Manifestation of Assent and the OSL

[Lawrence E. Rosen]

My Linux Journal article on "Manifestation of Assent" is intentionally
license-neutral.  But for those of you who want to continue the legal
discussion just among us present at license-discuss, here's what the
Open Software License (OSL) currently says about the issue:

   9) Acceptance and Termination. Nothing else but this License
   (or another written agreement between Licensor and You) 
   grants You permission to create Derivative Works based 
   upon the Original Work or to exercise any of the rights 
   granted in Sections 1 herein, and any attempt to do so 
   except under the terms of this License (or another written
   agreement between Licensor and You) is expressly prohibited
   by U.S. copyright law, the equivalent laws of other countries,
   and by international treaty. Therefore, by exercising any of
   the rights granted to You in Sections 1 herein, You indicate
   Your acceptance of this License and all of its terms and
   conditions. This License shall terminate immediately and you
   may no longer exercise any of the rights granted to You by
   this License upon Your failure to honor the proviso in
   Section 1(c) herein. 

I copied the idea for this provision from the GPL.

To the extent that a putative licensee in breach of contract argues that
he didn't accept the license and so is not bound by it, the OSL reminds
him that copyright law prevails in such situations.  Such a bad actor
can't have his cake and eat it too.  One way or another he'll answer to
the laws of contract or the laws of copyright.

But because the OSL is unabashedly a contract, and where contract
formation can be proven -- as where click-wrap and other technical means
are used to manifest assent expressly and volitionally -- contract law
gives the Licensor better ways to enforce the License agsinst his
licensees.  A click-wrap or other contract formation procedure is not
expressly required by the OSL, but a Licensor who uses some technical
procedure to obtain clear manifestation of assent from his licensees
gets to sue them for breach of contract.

This provision in the OSL also announces that dual licensing is always
an option of the Licensor.

It is very difficult under the OSL for a licensee to argue lack of
notice about the License.  The OSL requires the Licensor to put the
following notice immediately after the copyright notice that appears on
the Original Work:

   Licensed under the Open Software License version 1.1

The latest DRAFT of the OSL is at www.rosenlaw.com/osl1.1.html.

/Larry Rosen

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