a proposed change to the OSD

Karen.Williams at sybase.com Karen.Williams at sybase.com
Wed Oct 30 18:38:15 UTC 2002

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

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,
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
               *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

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                             
                    10:03 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.


> -----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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