a proposed change to the OSD

Thu Oct 31 06:07:48 UTC 2002

Terrific explanation! Thanks.

Rod

Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
rod at cyberspaces.org
http://www.cyberspaces.org/dixon/
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132

>
> I've been following this discussion with interest.  Since some of it is
> generated at least in part by Sybase's submission of a license for OSI
> certification (which is based on the OSI-approved Apple Public License,
> with the addition of a click-wrap structure as a preferred alternative and
> a few other far less material changes), I wanted to respond/add to a few
> points.
>
> 1.  Use Restrictions.  It is not Sybase's intent (by use of a clickwrap
> format or otherwise) to restrict the use of the software for any purpose.
> Our principal interest is in protecting ourselves and other Contributors
> from any liability arising out of any such use.
>
> Many of the existing OSI-approved license agreements, in addition to the
> Apple Public License that Sybase based it's license on, condition
> permission to use the software on agreement to the terms of the governing
> license.  For example:
>               * IBM Public License version 1.0 and Common Public License,
> opening recitals:  "ANY USE, REPRODUCTION OR DISTRIBUTION OF THE PROGRAM
> CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS AGREEMENT".  See also the
> license grants in these agreements (Section 2), as well as in other
> agreements,  that specify that the grants are "Subject to the terms of
this
> Agreement".
>                *Nokia Open Source License (NOKOS License), Exhibit A and
> the Sun Public License, Exhibit A  - Both require a notice in the source
> code files that states: "The contents of this file are subject tot the
> [License] . . .; you may not use this file except in compliance with the
> License".
>
> We are not trying to accomplish anything different from what these other
> approved agreements are trying to accomplish.   These other agreements are
> clearly structured as contracts, not bare license grants,and use of the
> software is expressly conditioned on agreement to the terms provided.
> (This includes terms designed to protect the open source status of the
> software.)  The only material difference in the Sybase agreement is the
> addition of the clickwrap concept as a preferred structure.
>
> 2.  Clickwrap Structure.   The key issue from our perspective, and the
> reason for incorporating a click-wrap concept as a preferred structure, is
> to make the disclaimers of warranty and liability, as well as other terms
> of the license, enforceable.  We don't care how anybody uses the software
> that is subject to the agreement, but we don't want any claims or
potential
> liability from any such use.   Unless there is a structure that under
> current law gives some confidence that the disclaimers and limitations in
> particular will be enforced, there is a real disincentive for many
entities
> to make software available on an open source basis.   In my opinion, the
> current legal reality is that because of recent case law , structures -
> widely used as they are - that provide some notice of license terms but do
> not require a clear, unambiguous, affirmative "manifestation of assent"
> after an adequate opportunity to review may not be enforced by many courts
> in many cases.
>
>                     The language in the Sybase agreement does not require
a
> click-wrap structure in all cases.  It provides:  " Whenever reasonably
> feasible you should include the copy of this License in a click-wrap
> format, which requires affirmative acceptance by clicking on an "I accept"
> button or similar mechanism.  If a click-wrap format is not included, you
> must include a statement that any use (including without limitation
> reproduction, modification or distribution) of the Software, and any other
> affirmative act that you define, constitutes acceptance of this License,
> and instructing the user not to use the Covered Code in any manner if the
> user does not accept all of the terms and conditions of the License."
The
> alternative to click-wrap provided for is the same structure referred to
> above that is already in some OSI-approved license agreements, while
adding
> the flexibility of allowing other affirmative acts to be defined.  The
> "reasonably feasible" qualifier should address situations where clickwrap
> presents a technical problem.  There may be better ways to provide the
> necessary flexibility, but the intent was to provide it.
>
>         The reason for preferring clickwrap is that such a structure has
> been recognized and enforced by several courts.  Other clear, unambiguous
> and affirmative "manifestations of assent" should be adequate, too - as
> noted in the article that Larry Rosen circulated, this is the key issue -
> so long as the user has an opportunity  to view immediately accessible
> terms and reject them if he/she doesn't agree with them.  But the courts
> haven't addressed all of these.
>
>                      Larry Rosen's suggestion of providing one single
> click-wrap notice to obtain affirmative assent to multiple licenses is
> intriguing.  I think it  works if the single click-wrap notice tells users
> that there are multiple agreements/licenses governing the software
> components (and these are provided with and easily accessible in the
> software), that they must review them before using the software (use of
> "please review" was expressly rejected by one court as being a "mere
> invitation", contributing to a finding that a license agreement referred
to
> by a notice, with no requirement for any affirmative manifestation of
> assent, was not enforceable), and that they are bound by the terms of all
> of those agreements/licenses unless, after having reviewed them, they do
> not agree, in which case they must immediately discontinue any use of the
> software.  (Or something along these lines - I'm trying to focus on key
> points that some courts have picked up on, not dictate precise language.)
>
>
>
>
>
>
>                     "Lawrence E.
>                     Rosen"               To:     "'John Cowan'"
<jcowan at reutershealth.com>,
>                     <lrosen at rosenl
<license-discuss at opensource.org>, "'Russell Nelson'" <nelson at crynwr.com>
>                     aw.com>              cc:
>                                          Subject:     RE: a proposed
change to the OSD
>                     10/26/2002
>                     10:03 AM
>                     Please respond
>                     to lrosen
>
>
>
>
>
> I'm getting tired of repeating myself....
>
> I have proposed a click-wrap notice that would allow ONE single notice
> for all the programs in a distribution.  I believe that one notice is
> legally sufficient and indeed necessary to obtain affirmative assent to
> the licenses for the individual works comprising that distribution.
>
> Other lawyers may disagree, and every lawyer is free to give legal
> advice to his/her clients.  And if you don't like click-wrap notices,
> don't use them for your software.  Just to be clear, I will ALWAYS
> recommend one to my clients -- at least until the law changes.
>
> /Larry
>
> > -----Original Message-----
> > From: John Cowan [mailto:jcowan at reutershealth.com]
> > Sent: Saturday, October 26, 2002 9:51 AM
> > To: lrosen at rosenlaw.com
> > Cc: 'Russell Nelson'; license-discuss at opensource.org
> > Subject: Re: a proposed change to the OSD
> >
> >
> > Lawrence E. Rosen scripsit:
> >
> > > Russ, if it was your intent to prevent click-wrap notices, then I'm
> > > While many in the open source community are opposed to such
> > notices, I
> > > will ALWAYS recommend to my clients that they use such notices for
> > > their software, and that they require their sublicensees to
> > use such
> > > notices.
> >
> > That could get old real fast, when the typical program
> > requires the use of a dozen component libraries to function.
> > How many dialogue boxes are you willing to click on before
> > the Gimp starts up?  Or should each user when logging on to
> > the system for the first time be presented with about 700 of
> > them to click on?
> >
> > This is the "annoying [old-]BSD notice requirement" in a new guise.
> >
> > > Members of the community may not like
> > > it, but the courts are clear about the importance of such
> > notices for
> > > contract formation.  Whine and groan all you like, it's a legal
> > > necessity....  I'll change my mind about this only after
> > you succeed
> > > in changing the law.
> >
> > I agree with what you say, but draw a different conclusion,
> > viz. that contracts involving mere use (as opposed to a
> > copyright-holder right such as modification) are a Very Bad Thing.
> >
> > --
> > John Cowan  jcowan at reutershealth.com  www.reutershealth.com
> > ccil.org/~cowan
> > Dievas dave dantis; Dievas duos duonos          --Lithuanian proverb
> > Deus dedit dentes; deus dabit panem             --Latin
> > version thereof
> > Deity donated dentition;
> >   deity'll donate doughnuts                     --English
> > version by Muke Tever
> >
>
> --
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>
>
>
>
>
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