a proposed change to the OSD

David Johnson david at usermode.org
Sat Oct 26 20:06:40 UTC 2002

On Saturday 26 October 2002 08:36 am, James E. Harrell, Jr. wrote:

> I don't see significant harm in users indicating consent via click-wrap. As
> a
> matter of fact, my lawyers insist on it when I write commercial software.
> Excluding
> such an "action" (which according to our lawyers makes the license slightly
> more
> enforcable) will not encourage commercial entities to participate in Open
> Source.

A) A requirement for user consent, in my opinion, is immoral, unethical, and 
just plain rude. I don't need to agree to a license in order to read a book. 
I don't need to agree to a license in order to listen to music. I should not 
have to agree to anything in order to use a copy of software which I own. 

Copyright law is meant to be a compromise between the rights of the author and 
the rights of the possessor. Requiring user consent places too much control 
in the hands of the author.

B) Commercial entities that can not stomache this have no place in the Open 
Source community. They wish to sell their software but act as if they have 
only leased it. They put their software in colorful boxes, shrink wrap it, 
sell it at retail outlets, then pretend that they have only sold the right to 
use the software.

These companies need to grow a backbone and become honest. If they don't want 
the user to have the right to use the software, then they need to stop 
pretending to sell it. They need to stop pretending that software is a 
product. Place the license or contract in front of the user *before* the user 
aquires the software. Be explicit that the software is leased to the user. 
Even though it still won't be Open Source software, at least the employees of 
the company will be able to sleep well at night.

Despites attempts to educate me, I still cannot understand why contract 
formations are necessary *after* the fact. If you want someone to agree to 
your contract, then get them to agree *before* they get your software.

> Maybe I'm in the wrong place? If click-wrap is specifically excluded, then
> our
> product and desired license also won't meet the OSD. So maybe it will just
> have to
> be open source (with a lower case "O" and "S")?

It still wouldn't be open source. The idea of open source is much more than 
the capitalization of words. There's an idea behind it that is much more 
important than mere clauses in a definition.

David Johnson
pgp public key on website
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