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Click-Thru Licensing on Open Source Software?
Russ Nelson writes "At the July OSI board meeting last week, we approved the Academic Free License (think MIT/BSD/X11/Apache with a patent grant) and we sent four licenses back for reconsideration. Here's the hitch: we were asked to approve a license which includes a requirement for click-wrap. Read more to see why we're asking you about it.
The submittor had already been asked if that requirement was a necessity. She said yes, because of various legal precedents. We consulted a few people and yes, it looks like a license without click-wrap is weaker at protecting your rights. So, folks, the lawyers are coming. The time is coming when you won't be able to distribute software unless you have presented the license to the user and their assent is necessary to access the software. Even free software. Our industry is maturing and we need to be more legally careful and rigorous.
The question here is whether we should amend the Open Source Definition so that it is clear whether click-wrap licenses are allowable or not. We could go either way, but we want to hear from you first. Your opinions solicited, and engaged!" While I can understand some legal necessities are necessary in the software world, click-thru licenses have never, and will never, make sense to me. Maybe commercial software has soured me on the concept, but I dislike agreeing to something before I even get a chance to use it.
be a fill in the blank paragraph?
All Troll + "offtopic" mods are meta moderated as "Unfair", because you abused the system.
Fingers fly like mad
Twenty second time limit???
God damn you Hemos
Necessities are necessary? Jesus, Cliff.
surely a simple license box with a Click to accept and a pasting of the GPL, BSD or MIT license on installation is fine ?
whats wrong with having it there ?
I don't get it. Not only is this an incredibly annoying thing to have, it doesn't make sense on console-based apps. So what, if I want to run a given program I have to see the license and agree to it each time? Once? Twice? Will it ask me again if I'm SURE?
I think this is a very silly idea. If the software is commercial and is a large application as well, I can understand that being there. But, mandating such a rule, and making it across the board (not case-by-case) is unthinkable.
What would happen if you manually extract the files to a program, bypassing the click-trough licence?...
I had to do this with one microsoft program, because the installer would not work...
am i breaking the licence or outside it?
Cruise TT
If there is a click-wrap license, there should be some manner of limit to the length &/or legibility of the license.
Most of the commercial click-wrap licenses are so long and tediously legal, that one cannot possibly wade through (and understand!) the license before an updated version of the software is released.
What other product do I agree to a license to when I aquire it... very few indeed. I don't recall a license agreement with most anything I own so why the hell does someone think that this is mandatory for software? It's just another product.
It's horrible that we live in such a litigious society that people have to worry about giving something away for free.
We've ratcheted down another couple of notches into the corporatization of everyday life.
Jim Slattery
Network Guy (MCSE)
Thousands of candles can be lighted from a single candle, and the life of the candle will not be shortened. Happiness never decreases by being shared.
- Buddha
Why is it that lawyers need to get thier greedy paws on everything. Whenever they get involved they just convolute things make it complicated and turn it to shit. Lawyers, politicians, and executives are all born from the same pond scum. They should just all go away and fucking die.
Lawyers are like M$. Fucking evil and greedy
Inconceivable!
jason
Have a good day?! Impossible! I'm at work!
In the event that a license is not legally binding (i.e. a GPL or BSD style license), the terms revert to the default, which is "All Rights Reserved", which is more restrictive than what is being granted by the GPL or BSD license.
So taking advantage of those terms (creating derived works, redistributing, blah blah woof woof) indicates implied assent of the terms.
Besides, the only time licenses have been held not legally binding have been when the software has been sold -- most free software is not sold, it is downloaded. Free Software vendors should be indicating the terms of the GPL (assuming some software is GPLed in their distribution) on the outside of the packaging, but even if they don't, again, the license is not restricting any of the rights you would normally have in a software sale so there is no need for prior assent.
This is all crap until the courts rule on the applicability of licenses like this anyway. Free software licenses do not fall under the same category as normal closed licenses.
xsane already does it.
The ocean parts and the meteors come down
Laid out in amber, baby.
... which have no GUI and is installing using
RPM ?
Or updated using RPM?
Or worse, installed using OS installer?
I will sit and click through about 600 EULA-s?
Even through GNU EULA-s?
And have a copy of the license in ever source file, and you have to have the license on start up every time....
Why must Stupidity require us to cater towards it. No one reads a click through anyway. And if they were going to use the source for something they surely would have to read the License.txt or what ever that is in the same directory. What if the person never runs the program ignores the License.txt and goes striaght for the code... should the license be at the top of every file of source code? How about every function?
"All I can tell the "lesser of two evils" folks is that if they keep voting for evil, they'll keep getting evil."-Lp.org
You mean that little boxes contains EULA ? What will our free software ones contain? GPL v2 license text or any other open source license text?
Never learn by your mistakes, if you do you may never dare to try again
Copyright (and patent) laws already protect "your rights". If something is not listed in either of those, then they are not "your rights" and you are not entitled to them. Why is any license necessary?
There's a difference with the GPL etc., which are not EULAs but rather distrubution agreements that give the user rights, not take them away. No click-thru is needed for those because nothing else would give the user the right to distribute copyrighted software.
While I think there is nothing wrong with Click-wrap licenses (ie: makes no difference to me if I click it or not) I don't believe it is necessary for any license UNLESS that license restricts someones rights MORE than copyright already does by default.
And I don't believe the BSD or GNU licenses do that. As for the rest, well thats another story.
While i don't particularily like the idea of proprietary software vendors trying to trick me into thinking that any license I've "accepted" is legal, I'm not shure that click-wrap is a bad thing for a truly legal license. In other words, I really don't think that this is the reall problem. The battle we need to face is against those who try (fraudently I would say) to pass off license that should never see the light of day. If the FBI can hunt down CEO's & CFO's for stock fraud, why can't we get them (and their lawyers) on the hot seat for conspiracy against the consumer at large?
"Sanity is not statistical", George Orwell, "1984"
Is it just me or would this require a massive re-working of the current Open Source system. How do you provide a user with a click-through interface on a tarball? Would you have to distribute source code through a binary just so that you could have an interface for the user to agree to the license? How would the package management/distribution software maintainers respond? How would Open Source OS distributers respond? Contact the maintainers for all pieces of software included in the distribution and get together to have an all-encompasing license?
My personal favorite would be to build a system like Gentoo. It already takes forever to compile the software. But then to wait for the user to interact with each piece as it installs?
Ridiculous. I agree that the Open Source software industry is evolving but I never saw it going in the direction of a massive beuracracy. One of the beautiful things about this software is that it can avoid all of that crap. The industry can turn on a dime. Would it be able to with a requirement like this?
Have your lawyers read Eben Moglen on enforcing the GPL.
-- Some things are to be believed, though not susceptible to rational proof.
Since open source licenses are in fact redistribution licenses, I thought this sort of thing was covered by the fact that if you don't agree to the license, nothing else gives you the permission to redistribute.
The purpose of Copyright is to at the same time secure rights for the work's author/owner and to allow for the rights of the user. Copyright's allowances are granted automatically to any copyrighted work and include freedoms like parody law and fair use.
The problem is that many rightholders wish to further restrict these rights, and to do so must present you with a license that you must accept. Without acceptance of the license, their restrictions fall to dust.
Should clickwrap be used in Open Source? The purpose of these licenses is to defend the freedoms that come with copyright and then to extend them to allow users to share their derivative works with others. Using clickwrap gives the impression that you no longer accept the allowances given by US and international copyright law, even if it is not the case. This is an impression that I believe we should avoid at any cost.
(Of course, if the intent is to restrict these rights, then the clickwrap is necessary - but why grant the name Open Source to something that does?)
A number of times ive just unpacked open source software and used the software with no concern about the license, did I agree to it or not if I didnt even see it?
You have to agree to something all the time in life before you actually get the product/service/whatever...At least displaying the license to the user your forcing them to acknowledge it if nothing else.
Might be stupid example, but its like I put an agreement in your coat pocket without you knowing and then saying you must have agreed to it because its there.
Laptop Reviews
Na, its not maturing - it like that song ...
Send in the clowns, or lawyers as the case may be.
Of course it cannot be a requirement, there are types and varitions of code, and software
that by nature are not clickable.
A requirement for clickthough is going to destroy many forms of GPL'd non desktop software.
Clickthrough also assumes a mouse and keyboard, or some other input device... and an output or display.
There may be none.
Legal advisors are wrong about enforcement, somebody needs to introduce them to technology, not PC's.
I'm sorry, but if "a license without click-wrap is weaker at protecting your rights." then the license is inherently flawed, especially in open source.
Here's the problem, by introducing a click-wrap license, you actually weaken your license. The reason is that you introduce a fail-point. If the user never clicks through, does the license still apply to him? Any lawyer could sucessfully argue otherwise.
Now imagine how this would work for opensource. The program, and all of it's derivatives, could not possibly be provided in a tarball. Because untarring the tarball gives you access to the source without having to agree to their license. So the source will always have to be provided in a self-running executable.
It just doesn't work.
is it more important to protect one of these two groups. i say no but to protect one is to infringe on another. being a guy who cant program i say protect the programers. we need them more then then users.
if we put some kind of click through license on it wont matter because no one will read it anyway. save the programers by any means necessary. why? because Linux and BSD rock and we need more people using it...
(yes i know its incoherant and miss spelled)
This is how you know you're a geek the power goes out and you are unemployed and unemployable. Yes I know I can't spell
Let the people who run slashdot run it how they want to... And you can run your website how you want to, k? Ok, now bu bye.
The fact that someone took the time to put a piece of code under one of the free licensing paradigms indicates that the person cares how that code is treated. In a pure sense, licensing is an expression of your intentions for that code. If you don't want your intentions to be uniformly ignored by the larger society (and it's lawyers) then you need to do something that requires the user to agree to your intentions. If click-thru does that, then by all means it should be included. Granted click-thru is annoying. But as the tech community, we have no one to blame but ourselves if we don't come up with something better.
I'm suspicious of this, and here's why:
/. saying "I didn't get the click-through because (insert complicated avoidance proceedure here) so it doesn't apply to me." What if I have a child click through?
How do you verify that I have indeed clicked-through the wrapper? I've oft seen people on
In short, how do you have a legally binding contract in the absence of a bidirectional communication that "... the party of the first part, being legally able to enter into a contract and freely entering into the contract, and the party of the second part, being legally able..." zzzzzzzz-snork! (Sorry, nodded off there...)
I question whether click-wrap really improves the strength of the contract or not. I'd like to hear from a professional on this matter, however (Dr. Hawk? You reading this?)
www.eFax.com are spammers
Does click-wrap licensing on free software mean that someday every configure script is going to present the GPL to you so that you scroll down and say yes without reading, just like every other click-wrap? And can you still call it click-wrap when it's a CLI? :-)
:-)
Of course, it may well come to that. A more interesting problem, though, may come in the case of distributions. A large distro with a "kitchen sink" install could put in a couple thousand packages - is the installer going to force you to agree to the click-wrap GPL/Berkeley/X/Bugroff/whatever license for each of those packages? Bet you won't find many people installing that one. Yet if they don't, that supposedly weakens the license?
But what the heck - proprietary software vendors all say you are bound by their license whether you red it or not, or even acccept it. If it's good enough for them, it ought to be good enough for anybody
This is all nice, but the idea of open-source is being able to take the source and adapt it to your needs. This sometimes means taking many different programs and putting the source together... What happens to click-through licenses in thoses cases? You end up with 10 different?
Also, it is clear that any license that *requires* a click-through would be GPL-incompatible for obvious reasons (GPL forbids adding any restriction). That being said, nothing prevents me from taking a GPL program and adding a click-through license to it, as long as others are free to remove it from the source... For example, I could distribute a GPL binary and add an EULA that says: "if you use this binary, you accept not to sue me..."...
Opus: the Swiss army knife of audio codec
Open source software can restrict you from distributing the software (which Free Software allows you to (some licenses restrict this under certain conditions like the GPL) but AFAIU the OSI guidelines did not allow licenses to place restrictions on using the software.
If the mere availability of code would be sufficient to be OSI approved, shared source would be too?
Don't do this.
Bruce
Bruce Perens.
I have no strong feelings either way about whether 'free' software should or should not have a clickwrap style license agreement. I suppose that's up to the lawyers to sort out.
I do think that the validity of a clickwrap license is highly questionable because the user would under normal circumstances be unlikely to see it. Most people get PCs pre-configured at work or by a technician, and it's the technicians that are just clicking "OK" to the terms of the EULA, and I presume that the vast majority of technicians don't bother to read the EULA anyway.
Perhaps it could be argued from a legal perspective that the technician was acting on behalf of the real end-user/purchaser, but legalisms aside, it doesn't make much sense.
"But actually trying to use m4 as a general-purpose langage would be deeply perverse" --ESR
I think a lot of people are sour to idea of click-thru licenses because they typically take rights away, in commercial software. But the GPL, BSD License, etc all grant you additional rights.
What is the purpose to making sure people have agreed to these additional rights? It's nice to let them know as a favor, I suppose... Mozilla shows the license during install.
But if they don't agree to the "Open Source" terms, they are left with normal fair-use rights to the software, which, for an open source program, SHOULD BE PERFECTLY FINE. There is nothing we have to take away, so no need to force agreement to the terms. In fact, the GPL says as much. You can still use the application without accepting the GPL, you just can't modify it (due to copyright law).
I can't think of a license under the Open Source terms that takes away rights, therefor I oppose the requirement of such click-thru license agreements.
DRM? No thanks, I'll just get it somewhere else...
Think toaster, think refrigerator. These items do not need a license. Software should be exactly like that. No click through license is necessary.
There should be no click-through licenses, even if only to protest their validity. A contract that you have no chance to negotiate about *should not* be valid.
The software industry needs to get over the fact that it is not going to be able to avoid being liable for it's products, especially when they're making billions of dollars of *profit*.
The whole concept of licensing the software is also pretty foreign, not only for me but also to the common public. I bought the software I should be able to use it any way I want. The whole shenanigans with OEM licensing, corporate licensing, etc is just ridiculous. I'm surprised (a little) that someone hasn't taken it to court yet. Especially for corporations, where they can show that they order 12000 machines with Windows 2000, but for their purposes they need to roll out with a corporate key to meet their standards. This should not require them to purchase another 12,000 licenses... but that is the situation today.
No, I'm not talking about warez...but perhaps, if software can't be used without agreeing to the license, shouldn't the seller provide an unlicensed demo? I mean, you aren't required to buy a car just because you test drive it, nor are you required to buy a screwdriver just for taking it off the shelf at Sears.
Software, however, comes with no such luck. You can't try it out at the shop (Apple Store excluded). You can't open it, discover it's shit (*cough* daikatana *cough* *cough* windows xp), and return it. You are required to guess whether you need it, shell out $50-$400 for it, and sign away your rights to share it, sell it, fix it, critize it and in some cases, even use it for its intended purpose, as well as the company's liabilities for their own mistakes.
Can you imagine buying a hammer and having to sign a form saying you won't use it to hammer anything unapproved by Stanley tools?
Not that you'd be buying Stanley tools, what with their moving all their plants to China and Israel and their corp office to Bermuda to avoid taxes, unamerican shitheads.
Hey freaks: now you're ju
This is a good question. On one hand the thought repulses me. I have come to the point (after reading and agreeing to so many commercial lisences) that it seems like I am agreeing to give someone permission to "rape" me if they feel like it, or agreeing to a list of stuff that I can't/won't do with the software when I agree to a click through lisence. On the other hand I can see how lawyers don't understand how someone could distribute something without tying your hands before using it.
It seems like this would make their job easier. This way they can say look you agreed to all these things here. Whether you read it or not. I guess maybe this helps eliminate the ignorance defense which really shouldn't be allowable any way.
In the end I guess it isn't really such a big deal. Really whether you signify that you agree with the lisence by clicking on something or by using the software. You are still bound by the lisence.
It's amazing how spiritual an elaborated beer commercial can be. -- Philip K. Dick
Click wrap licensing has NOT been challenged far enough to say it is even binding. When a 3 year old child can agree to the contract (which isn't legally binding) how can the license truly be a binding license.
I'm one of those people who believe that when I purchase a product at a store, and take it home it is mine. At that point, I can do whatever I want with it, including resell it to someone else. We should all stand up and say "ENOUGH!"
Contracts are something like the purchase of a house where we all sit down at a lawyer's office and go through the contract page by page, deciding whether or not we agree to it. A contract is NOT something that requires only that I click a button saying that I agree in order to use a product I BOUGHT!
If enough people stand up against these restrictive licenses and insist that these products have been purchased, not simply licensed, maybe we can recover some of the FREEDOMS these licenses steal from us. These works are protected by a very producer favorable copyright, they don't need anything more.
And, if Open Source bows to this, I will no longer have respect for Open Source.
Don't just complain - DO something about it!
First, if you uninstall the software does that negate your agreement to the license? If so, how would that impact the GPL.
For example, I have FrontPage 98 installed on a computer (no I don't but it's the only example I could think of), I install the latest version of FrontPage that states that I can not use FrontPage to disparage Microsoft. If I uninstall the latest version and revert back to FP 98, am I free to use FrontPage to insult Microsoft again?
When do I click "I agree" when I compile a piece of software. Since the GPL primarily seems to apply to source code (Correct me if I'm wrong about my assumptions regarding the GPL being mainly a source-code license.), what license would I be agreeing to if I install Apache and click "I agree".
Second, has there ever been a recorded case where someone disagreed with the license (I mean actual trial and/or litigation) and the fact that they clicked "I agree" was a factor? Are we really just making more lawyers rich?
Have there been any license disputes? At least from the end-user perspective, I know there have been some regarding the GPL and derived works.
"For a successful technology, honesty must take precedence over public relations for nature cannot be fooled." -Feynman
Look, the damned lawyers are hauling us up by
our short hairs, we're being eaten alive by a
huge raftload of bad law aided and abetted by
Microsoft and others. There is no longer any
question that we need protection.
It doesn't need to be elaborate. A
file would contain a list of booleans for every
approved open-source license. When an app starts
up it merely calls a library function that checks
to see if that file has the boolean checked and
if it does not, prompts the user by command-line
or dialog box to set it. The OSI licenses them-
selves should be modified to note that OSI soft-
ware will not run without the boolean being set,
and therefore the fact that the software runs is
evidence of user acceptance of the license,
regardless of how the boolean came to be set, by
dialog or user editing.
Distros would, of course, simply combine the
above into part of the install "Do you accede
to the requirements of the following OSI
licenses?" and sets the file up with all booleans
checked. Viola, no more hassle.
If you don't agree to the licence for GPL'd software, or even if it doesn't apply to you, then standard copyright still stands. Standard copyright rules won't fly out the window because you weren't explicitly told a product was copyrighted. With regard to the GPL, and maybe other Free or "Open Source" licenses, you actually are GIVEN rights by the copyright holder that you normally DON'T have.
So either your aware of the license, in which case you have to abide by it, or the license doesn't apply do to this legal reason. If the license doesn't apply you can't modify and distribute it anyway.
I can't speak for other OS licenses that I haven't read, but this has basically always been my understanding of the GPL.
I didn't even bring up that the GPL only matters at all IF you are a distributer of the software (modified and/or unmodified) and that a normal user need not agree to it at all and can be safe in treating the software the same way any standard copyrighed work can legally be treated.
In the case of the most basic open source software, though, no license is really required. The author(s) retain copyright and simply choose to distribute the source along with (or even in place of) object code. It's only the perverse history of the last 25 years that leads us to think that an author gives up rights if he doesn't keep source code under lock and key.
Assume, then, that there are additional terms (again, see the GPL). The question is whether these additional terms are such that failure to execute a contract would vitiate them. In the case of the GPL, I don't see how that could be; perhaps someone could explain.
As for click-wrap, this implies some degree of license administration. All in all, it's probably much easier to simply keep a registration database of those who agree to the terms in return for redistribution or derivative-works rights.
Lacking <sarcasm> tags,
Seriously, if a new license springs up requiring a click through, that could work on a desktop, but what about when I rip out the program's optimised hashtable implementation for use in an embedded controller? How is a clickthrough supposed to work then?
If a new input paradigm springs up for desktops, will code licensed under explicit clickthrough terms that aren't satisfied by it be left to rot?
If you're that afraid of people using your stuff, and you don't feel that copyright gives you adequate protection, then you probably shouldn't open the code.
seriously no one gives a crap what OSI does or doesn't approve, i mean really.
1999 is over, no one gives a fuck about you or your stock scams ok.
I can't see why it is so important for a user to have to acknowledge the license for it to be enforced. You don't have to sign anything saying you understand copyright law in order to open the cover of a book, do you? Why is this different?
It's important to protect your rights: even if the software is under the GPL - I wouldn't want a big bad corporation to claim my creation is their work and to patent my software and start charging for my work. I hope that, due to leagal necessity, open software developers will never have to have a team of lawyers to protect themselves and subsequently have to charge for the software to pay the lawyers. We'll all suffer for this. Sometimes, I get so angry at our(US) legal system and its unfairness.
There is no spoon or sig.
When you installed the software and started using it, you didn't agree to anything. You're just using the normal fair use rights. It's when you start doing things that normally wouldn't be legal under copyright laws (distributing the program, for instance, or something based on it) that you need to agree to a license. That's why click through licenses aren't necessary for ordinary users; you're not doing anything special.
Visit me on #weirdness on the Galaxynet.
IIRC the GNU GPL applies to the distribution of of software, not it's use. So, if someone downloads GPL'd software from a website, wouldn't the click-thru go to the distributor.
The "maturity" of the "industry" has nothing to do with freedom. The GPL and BSD-oid licences will remain, regardless of "click-thru".
This might be a problem for adherents of "open source" philosophy, since they are concerned with acceptance by the "industry". To adherents of "free software" philosophy, it's a non-issue.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
Can we click-wrap the Linux/FreeBSD/OS distribution as a whole, with essentially "you implicitly agree to make yourself aware of all licenses of their respective owners and agree to the terms of that license agreement"?
Which in the case of Debian essentially means, "you agree to the GPL/LGPL license that applies to all our non-non-free software". An interesting precedent.
Read the article by Eben Moglen, the lawyer who, for the Free Software Foundation, actually enforces the GPL.
This claim is based on a misunderstanding. The license does not require anyone to accept it in order to acquire, install, use, inspect, or even experimentally modify GPL'd software. All of those activities are either forbidden or controlled by proprietary software firms, so they require you to accept a license, including contractual provisions outside the reach of copyright, before you can use their works. The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL'd software from day to day needs no license, and accepts none. The GPL only obliges you if you distribute software made from GPL'd code, and only needs to be accepted when redistribution occurs. And because no one can ever redistribute without a license, we can safely presume that anyone redistributing GPL'd software intended to accept the GPL. After all, the GPL requires each copy of covered software to include the license text, so everyone is fully informed.
I don't understand the posters comments about the ability to defend the license if it's not presented to the user.
Fundamentally under copyright law, you have virtual no rights except that you can use the software. I refer to section 5 of the GPL:
5. You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify or
distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License. Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it.
Click-wrap licenses should only be necessary if the licenses restricts the *use* of the program.
Tks,
Jeff Bailey
AFAIK, click through licenses aren't legally binding in most European countries. The German courts have specifically ruled against them, in fact.
If software companies really want to enforce click through licenses like a contract, why don't they just make it a formal contract? Print it out on official legal paper, require all customers to sign (with witnesses, etc) before they buy, and take people to court if they violate it?
Oh right, because that would mean that people would be paranoid out of their minds whenever they went to buy software. Not to mention that no one under age 18 would be able to buy software (or use it, for that matter). No, software giants WANT the click through license to be as easy and brainless as possible, so people don't realize just how much they're getting screwed. Plus, they don't want the idea of click-through to get too much legal scrutiny, since it would probably be ruled unenforcable. No, they're just interested in the fear factor they get from being able to say "Hey, you clicked to agree that you wouldn't do that! Don't make us come after you!"
What is an example of something else where you have to sign your life away before you see what you're getting into?
Seems to me software is the only thing ridiculous enough to have you agree to all the terms and conditions before you even install the thing, much less run it and see if it even serves you well.
~ now you know
A requirement imposed on whom, to do what?
What precedents? Whom did you consult? Whose rights? What's the argument?
What kind of FUD is this? Are you telling us it's a forgone conclusion that you will accept this license? Are you telling us that the FSF (which defines "free software") will accept this license? Are they and other free software distributers going to change their licenses to require click-through?
Come on, Russ. Give us the facts, straight, so we have some basis for discussion.
The evaluation of an action as 'practical' . . . depends on what it is that one wishes to practice.
This confuses me. I have never had to agree to a license to use the fruits of much more mature industries. For instance, has anyone ever made you read a license after purchasing a new car, or crossing a bridge, or entering a building, or...
We apologise. The remainder of this thought has been interrupted by the cacophony of a million laywers simultaneously drooling.
That's not the purpose for click-through software on free apps. The major reason is liability of the software on a computer. If I install LILO and it wipes out my hard drive, I can sue the writer of the software. Unless, of course, there is a legally binding agreement between me and the software company/programmer who made it that I cannot sue for damage done to my computer, etc.
Moderation: Put your hand inside the puppet head!
Too bad number 4000000 couldn't have been something cooler.
osi is completely irrelevent now.
some people care what the fsf says about licenses.
man osi will approve anything...
they already approved a bunch of lame ass licenses.
i mean who the fuck is osi?
a book publisher and some failing dotcom era consulting companies?
who gives a fuck what they approve.
They are probably correct that click-through is helpful for typical proprietary licenses. But it is not needed for typical OSS licenses.
You can read http://www.gnu.org/philosophy/enforcing-gpl.html for an explanation of why, from perhaps the world's foremost authority on the subject, FSF lawyer Eben Moglen. But by way of an executive summary:
This is there actually is a fundamental difference between OSS (or at least Free Software) licenses and proprietary ones. By default (in the US) you have no rights to do anything with the software, even run it. Proprietary software licenses offer you a deal whereby you are allowed to run the software, in exchange for agreeing not to do other things that you are typically legally allowed to do. So they give up rights, and you give up rights. But its tough to make a case (in court) that you agreed to give up those rights, if there is no proof that you ever even saw the agreement. That's where click-through comes in.
With a Free Software license, you are only given rights; none are taken away. You might not be able to do some things (like sell it to someone else with a different license), but you aren't allowed to do that stuff by default either. If you break this license, there is no question that you violated copyright law, whether you agreed to the license or not.
So unless they had something in that license that says the user agrees not to do XYZ, which they normally would have the legal right to do without the license, then click-through is completely unnessecary.
Note: IANAL. This comes from extensive reading of GPL materials, writings of IP lawyers like Eben Moglen, and discussions with folks who have actually been in court on IP cases. For advice on a specific situation, contact a good IP lawyer. For everyone else, I highly encourage reading http://www.gnu.org/philosophy/enforcing-gpl.html , which covers this in a bit of detail.
The GPL and BSD and other OSI approved licenses _are_ actually licenses because they give you permission to do something that you would not otherwise be able to (distribute, modify+distribute, etc).
Perhaps the term "license" as used in proprietary software refers to the permission that you are giving the copyright holder to invade your home or business (BSA).
Just ask any self-respecting, fully functional B?FH.
One does not need to accept the terms of the GPL unless one is redistributing the program. Mere users of GPL'd software don't need to read or accept the license at all.
So for a huge fraction of "open source" software (that which is actually Free software, under the GPL), a click-through requirement prior to using the software makes no sense.
Liberal (adj.): Free from bigotry; open to progress; tolerant of others.
Would having this be validating the use of click thru for other licenses? This still seems to be somewhat of a grey area. Has it been tested in US, or other, court? Would it have any effects compared to what we have now for OSS?
The OSD was developed by the Debian group under the aegis of Software in the Public Interest. Nobody who is presently involved with OSI had any part of that.
OSI is probably the biggest mistake I've ever made, and yes it's my mistake. It's time to clean it up. The OSD should be returned to SPI, who can be trusted to administer it sanely.
Bruce
Bruce Perens.
the time is coming when you won't be able to
distribute software unless you have presented
the license to the user and their assent is
necessary to access the software. Even free
software.
Nonsense. Prior assent is only needed when the license requires the user to give up rights she would have were there no license at all. No Free Software license does this.
You also make it sound like I would be forbidden to distribute software without a "click-through". In fact, the worst that could happen is that some license provisions might not be enforceable without prior assent. I can think of no such provisions that I would want to enforce anyway.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Click-through only affects the user of a piece of software, not its would-be developers.
"Safeguarding our freedom" my ass.
The DMCA makes click-thru licenses legally binding, right? Well, maybe all these free software efforts should start putting up click-thru licenses that grant the contributors to the free software unlimited rights licenses to all commercial software produced by any of the licenses. I can see it now! "Warez! This ain't warez, some guy at Microsoft clicked on my license and gave me unlimited rights to all Microsoft software. BWAHAHAHAHAH!"
*evil smile*
C//
So a click through GPL is silly for end users. Use of the program is not restricted by the GPL so there's nothing for the user to agree to. It would seem sensible, if you're going to impose restrictions on someone, that you be required to tell them about the restrictions before they are required to abide by them. But in the case of using the software, there are no restrictions. So what is there to tell... except maybe to be nice and inform the user that they have a right to the source code to the program that they're using.
It's only when someone goes and gets the source code, with the intention of redistributing, where the GPL starts to come into play. Becuase, in that case, there are some restrictions that are being placed on the end user if they want to distribute the code. Of course, there should be no reason to require the end user to click to agree to them. The default copyright stance is that you have no rights to copy unless given permission to:
So the question now becomes, when someone downloads the source code, does the source code have to come in a way that presents the GPL to the user prior to granting them access to the source code? And I think the answer is no. Because the default stance of copyright law is that you're *NOT* allowed to copy it unless given permission So if you didn't click through the license, then copyright law does not allow you to distribute it. Oh wait, look here's the GPL which governs the terms under which you can distribute it. In other words, in order to be allowed to distribute, you *MUST READ AND UNDERSTAND THE LICENSE*, because, by default, you don't have any right to distribute.
My personal opinion is that I'd like to not encourage click through licences. I'd rather see copyright licensing become less restrictive rather than more. I'd like to see things like the GPL less necessary, because ideas flow freely by their very nature, and are not artificially restricted by legal constructions.
Allowing open source licenses that require click through is basically saying that we should make the exchange of ideas more restrained by artificial legal contructions. It seems to me that the point of opensource is to promote the benefits of the free flow of ideas. And allowing licenses to require click through is well, not really the point.
But I'm sure that there's some fundamental flaw in my logic here. I leave it to you to point it out to me.
$.02
Key to financial independence: Spend less than you earn. Save and invest the difference. Do it for a long time.
Ford can't sell cars that kill you.
The meat industry can't sell you rotten steak.
You can't be made to sit on a rotten board on top of a light tree at the local ballpark.
So why doesn't software have regulations that it can't destroy your machine? You may not own the software, but you damn sure own the parts of the computer.
If this were regulated then click-through licensing would be a non-issue, as it really would be about terms of use and not simply a deathgrip.
Even though the GNU Hurd is kinda sucky right now it's a relief to know it's out there.
That way when these lame open source assholes are done selling out trying to save failed businesses there will still be a Free OS out there.
Did you click through on the Constitution? The tax laws? Ignorance of the law is no excuse.
Too bad number 4000000 couldn't have been something cooler.
You mean like:
The least stable isotope of uranium 236 weighs 23 picograms per cubic hectare.
Or perhaps:
Frost Pist!
1) Free software is the solution to the software crisis.
e ver-software
2) Mr Moore gave us the problem.
3) I think that auto-installing rpm updates is the future with big pipes.
4) And click wrap will hinder a big pipe - free software future. My $.02
We need to be careful - people.
IDEAs -> Set the precident: If it doesn't have a clickwrap... then it must be free software:
and you need to make the source available.
Changing the brand-name to gnu-linux would also fix things. You put the legal on the brand. Then the legal is implicit in the brand.
Make people learn the legal once per brand...
Hey! what a timesaver that would be.
Free-BSD
Gnu-Linux
MIT-Scheme
CMU-Mondo-what
Organize software on download site by color of brand. etc. Solutions are endless.
violating the DMCA. I am sure some asshat lawyer will state that the installer encoding was there to prevent unauthorized installation and viewing of their precious intelectual property.
errr....umm...*whooosh* *whoosh* Is this thing on ?
> Not that you'd be buying Stanley tools, what with
> their moving all their plants to China and Israel
> and their corp office to Bermuda to avoid taxes,
> unamerican shitheads.
"Un-American shitheads"? I guess George Washington and Thomas Jefferson were Un-British shitheads for fighting the Revolution and establishing the US -- and the whole argument was over taxation and representation.
Quite frankly, Stanley has a moral right to evade confiscatory taxes by any means available, as do you and I. Why? Because income is private property, and nobody has the moral right to take another's property by force or threat -- as the government does through the IRS. Go read Ayn Rand and give the lady's ideas some thought before you go spouting about "Un-American shitheads".
BTW: if I ran General Motors I'd refuse to sell cars in California to protest the government's presumption: nobody has a right to tell me how to run my business unless I'm destroying their property.
Tell that chick to get lost.
Why would you even consider approving some shit like that?
You sellouts.
So, they asked a bunch of lawyers whether this was a legal problem. "A legal problem" means one thing to a lawyer -- another opportunity to make more money. "So, George, will we need to pay you a salary next year?" "Fraid so." "Gee, well, that's that." Next, we'll have a "debate" on the questions between, ... wait for it,...more lawyers. ( Research on Legal Game Theory, of coure, should have seen this years ago. ;)
What ever happened to "possession is 9/10ths of the law"? Was that just an Urban Legend? Worked for me.
MadDad32
There is a point you all are missing. Someone has to write the click-through agreements. That someone is a lawyer. He gets paid to write them.
.NET? Let me just order some on up for you all." Mangement is just as clueless when it comes to lawyers, who are just as self-serving and greedy as the rest of us.
Now, giving consideration to human nature, what do you expect that same lawyer to suggest when you ask whether or not you should have a click-through agreement?
In fact, I would even suggest that is the main reason for click-through agreements on most commercial software, which is already adequately protected by copyright. The lawyers who tell you whether you need a click-through don't make as much money when you don't need one. (As well as the natural herd tendency that keeps businesses from standing out from the crowd.)
Most companies have the same problem with the legal department of a company as they have with the engineering and other technical departments. Mangement does not understand them: "Oh, you need a GeForce 4 for every computer to run MS VC
Stupid question: When then? When would we have the user "Okay" through a EULA, if not before the install? When have you "used it" enough to be able to agree to those in-house searches for illicit copies of Mathematica?
Would doing the click-through later imply that the license didn't apply before then?
(Why, once we knew that copyright applied to software, didn't EULAs in the "We annoy you when you're installing" form die a graceful death? There's gotta be a better way of controlling distribution than implied contracts that are invoked in the act of breaking shrink wrap, right? You'd think.)
With the GPL, the user of the software is not required to agree to the license. The advantage is, if they don't agree to it, they're covered under default copyright laws. Only if they agree to it are they permitted to redistribute the software, modify and distribute, etc, but at the same time you're required to adhere to the additional restrictions, mainly the requirement to distribute the source with the binaries.
None of this part of open source needs to be addressed in a clickwrap license. What MIGHT need to be addressed are the warranty issues and issues of financial responsibility, should the software be in some way responsible for damage. While with open source, this is probably less likely than proprietary counterparts, its still a potential legal problem waiting to happen.
But as far as the issues of copyright, and how the software is used, open source software doesn't adhere to restrict the user in these regards, and wouldn't need a clickwrap to specify it.
-Restil
Play with my webcams and lights here
The question here is whether we should amend the
Open Source Definition so that it is clear
whether click-wrap licenses are allowable or not.
I strongly doubt that any software laboring under such a license will ever be part of Debian.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Well, the new age Industrial Feudalism has arrived. We have Lawyers instead of Warriors in Armor, but with the same unerring desire to take their cut from the peasants whenever money or goods change hands.
Is that what it has come to, when the Patrician Knights stand by for their tribute, even for free software? What kind of world is this when giant corporations decide that assets are too costly, and that it's better to just take their rake on other people's business? Is the future a day when corporate legions own all the politicians and 'due process' is something about which we read in old moldy paper history books?
This is not for me.
Click through licenses on free software? Screw that. Vigorously
Don't take life too seriously; it isn't permanent.
That being said, I've changed my mind since I've started writing. If I had to 'click' the GPL, I would have no problems. I understand the GPL, and it has withstood a large amount of scrutiny over the years. I've read it the whole way through once or twice, but it doesn't worry me that I don't remember much of it. I know what it means and what it entails, which automatically makes it more enticing to me than a more liberal license that I don't understand.
If a license is approved by OSI, I'm assuming it will generate some public discussion and scrutiny. If I see a click-wrap license, and know I can look up what the 'license nerds' think, if you will, that's fine by me.
Jack Valenti and the MPAA are to technology as the Boston strangler is to the woman home alone
A click-through license does nothing more then help ensure that the user had the opportunity to view the license. If the files are compress and encrypted and the installer presents the license to the user who is trying to install the package and requires the installer to do something that indicates the acceptance of the license presented then if push comes to shove, it is more arguable in court that the user was or should have been aware of the terms of the licensing agreement.
This can help protect both closed and open source products.
Packaging is more difficult but I think that we can handle it.
The race isn't always to the swift... but that's the way to bet!
It was reported on /. quite recently that some country was considering making it illegal to charge an educational establishment for a software licence.
Is there a country where lawyers have to wrestle with alligators in the dark before they qualify? If so, I want to move there. (Cos then they will know how their clients feel about dealing with them.)
Sent from my ASR33 using ASCII
What if I buy commerical software, and then decided I didn't agree with the terms of the license, and decided I would take it back?
A lot of retail software vendors will not accept the return of opened software. So, is the manufacturer then responsible for refunding your money? Do they pay shipping? And what happens if I want to return 300 opened boxes of Windows XP?
Or is it just tough, I bought software I can't (won't) use?
If it open-sourced then I can simply modify the code to remove the license. The fact that a license could exist in open source software seems to be a conflict of interest.
If the app + code was allowed to circulate freely the way GPL stuff does now, one wouldn't have to click-through unless all sources were wrapped with an install shield type of wrapper, or an rpm. That would add a pain-in-the-neck to the GPL process of liberating software, and it would give corporations fewer targets to shoot at in their battle against GPL software. And, when someone pealed the wrapper off and posted the GPL app anonymously then the click-through would be worthless.
Running with Linux for over 20 years!
Agreed. The issue is whether by "avoiding" assenting to the GLP/, can one exploit some sort of loop hole. Let's say you buy a Red Hat box, but don't view and agree to the license terms. This wouldn't mean you could then redistribute the source code (because that would be a violation of plain old copyright - since you haven't assented to the GPL you don't have the EXTRA right to distribute source), but would it mean you could distribute binaries (without source)? Binaries are derived from source, but since you produced them yourself, they are not "copies" of any Red Hat copyrighted material. And since you didn't agree to the license, it seems you would be able to redistribute the binaries without the source.
There are two orthogonal things going on here:
The ability to use a product you *purchased* regardless of the license on it.
The ability of an agreed-to license giving you extra rights.
We would like to have both in effect (being able to use proprietary software without agreeing to some draconian privacy-invading license, and being able to hold up the legal strength of the GPL). Somewhere between the two there seems to be a hole by exploiting one (use of licensed software) and relinquishing the other (extra rights granted by license).
It's 10 PM. Do you know if you're un-American?
"Our industry is maturing and... "
I would hardly call this mature.
The Kruger Dunning explains most post on
The time is coming when you won't be able to distribute hammers unless you have presented the license to the user and their assent is necessary to hit the nail. Even free hammers. Our industry is maturing and we need to be more legally careful and rigorous.
Does something strike you as odd?
Are lawyers really that hungry that they need to feed on free software licensing arguments?
How do you weaken something that gives you more rights than normally allowed under copyright law?
It's made clear in the GPL - if you don't want to agree with the license, that's fine, because it doesn't attempt to take away any rights you already have. Standard commercial licenses restrict usage that might otherwise be legal, so the click-through license is needed to strengthen the license.
For that matter isn't it adaquate to have a file called COPYING included with the source that contains the License aggreement as well as compile it into the app so that the user can display it with --copyright or "Help->About Application..." ???
-- Thou hast strayed far from the path of the Avatar.
This is bullshit, but not untypical for lawyers. Let me explain:
See, I work for a company whose lawyers believe that the DMCA is applicable in my (european!) country. They also told me in no uncertain terms that they'd have my ass if I told their stupid conclusion to anyone, which is why I'm posting anonymously.
It took me a while to understand their logic, and here's how it works: See, these (and the guys from the article) are corporate lawyers. The one thing that they can not have happen is that they say "go ahead" and it turns out to be a big mistake.
So what they do is that they err on the side of caution. Preferably, with safe distance to spare. They will always tell you that a law applies, that a safeguard is necessary and that a disclaimer is required.
Frankly, since shooting them is for some weird reason illegal, why not ignore their babbling and get on with doing some real work?
Software licenses aren't laws, they're contracts. You can't be held to them unless you accept their terms.
"Our industry is maturing and... "
Read: Our venture capital is running out so we're prepared to sell out big time now.
...how does this apply to guys like me that design fonts and other software that's supplemental to an operating system and not an executable? At the moment, most font formats have the equivelent of ID3 tags for putting information into, but I don't know of anything that allows for licensing, other than the good ol' README.TXT file.
So does this mean that those of us that build non-application software have less right to our work than those that do...?
blog |
You're just agreeing with him because he's Bruce Perens. Get your tongue out of his rectum and stand up for yourself, man.
How you gonna 'ckick' through your new
embedded appliance?
I regularly script to automate things.
If you say only GUI code is legally
protected, then most of the system is
in trouble.
This is about the stupidest proposition I've herd yet. You obviously have no clue about how Free Software licences (and copyright in general) work, so let me clue you in.
:-)
All all of the so-called click-wrap "licenses" (*) start off with the presumption that even though you bought a copy of software, you are not allowed to use it unless you agree to the "license" (and, in effect, give up your rights). Such a presumption, however, is not supported by copyright law. Quite simply, if you own a copy of software, you may do whatever you want with it, as long as you don't distribute copies of it to someone else. Making copies is the exclusive right of the copyright holder (fair use applies, of course).
(*) The "license" is actually a unilateral contract in that it takes away your rights instead of granting them.
Free Software licenses start off with the (correct) presumption that you can use the software in any way you want (thus, unlike proprietary "licenses", they don't attempt to take away your rights). Instead, they grant you more rights than you normally have. (Thus Free Software licenses are indeed licenses). Specifically, you get the right to distribute the software. There are, however, limitations in the ways you are allowed to do so. For example, GPL stipulates that you may not distribute the software under any other license; BSD allows you to relicense the software, but you must give credit to the original author, etc. If you agree to the license, you get the right to distribute the software; if you don't agree you have no such right.
This is how copyright works. All Free Software licenses are besed entirely in copyright law. They do not attempt to take away your rights as a condition to using the software. This makes them stronger than proprietary "licenses".
The only two cases that I'm aware of where a license was ruled unenforcible involve specifically the proprietary click-wrap "licenses". (Step-Saver v. Wyse Technology and ARS v. Software Link).
IANAL (but I play one on TV
___
If you think big enough, you'll never have to do it.
And of course I'm not a lawyer....
but reading the press over the whole Mysql fiasco, click-through license seems to only be a necessity if the license is taking away a right not granted by default copyright situations. For OSI software, the licenses typically grant rights not already granted by default, and thus can only be granted via a license agreement. For instance redistribution is not a right granted under default copyright rules. So for someone to redistribute a work they MUST have a license agreement from the copyright holder to do so.
Click through becomes a necessity when defending your license agreement in situations where you are asking the users of the software to agree to give up some default rights...or you are asking them for permission to use private data or some such.
So I'd imagine for some very complicated OSI approved licenses you might need click through...but I cant see old standards like X11/BSD/GPL needing this kind of mechanism since these licenses only grant you more rights over defualt copyright rules. Maybe a click-through requirement is a good measure of whether or not its should be OSI approved. If it need a click-through wrapper...then its got to be taking away some rights from users, and therefore not in the spirit of OSI.
-jef
"There is nothing we have to take away, so no need to force agreement to the terms. In fact, the GPL says as much."
A lot of people seem to be saying this, but there are a few parts of the GPL I would like users to see even if they don't agree to the rest of it:
"Also, for each author's protection and ours, we want to make certain
that everyone understands that there is no warranty for this free
software."
"11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY
FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN
OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES
PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS
TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE
PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING,
REPAIR OR CORRECTION."
and
"12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING
WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR
REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES,
INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED
TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY
YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER
PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES."
My Sig: SEGV
The post was obviously a complete troll.
But it accidentally raises a interesting point. With Slashdot so much a part of the "Open Source community" for some people, other then Taco's moral conscience, does it have a legal obligation to not actually censor users open dialogue here?
For instance, I would image it's perfectly legal for editors here to delete obvious trolls such as above. But what if a valid post is made, making disparaging, but true remakes about Open Source, or Mozilla, or something similar. It's on topic, completely factual, not a troll or flame-bait in the least (unless disagreeing with status quo counts as flame bait).
It's a private site, so in that sense editors could delete the post. But isn't there some assurance of accurate representation that the discussion is from the users, and not controlled and certain thoughts censored by editors?
I don't have to sign an agreement or click-thru something when I purchase a paperback. It doesn't make sense to require it for any copyright (or copyleft) work.
IMHO, the main (and perhaps only) benefit of click-wrapped software is that it provides clear notice of the license to the user.
It's easy to claim that you didn't see the license if it's printed on a small piece of paper that flutters out of the box or in tiny print on the CD or it's kept on a server in Redmond or if it is on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying Beware of the Leopard.
Well-intentioned users might have the same problem - if access to the license isn't convenient, they may just assume some terms are there or are not.
But click-wrapping a program that is distributed in binary form makes it pretty clear that the user was given notice of the license, even if he or she chooses not to read it.
I think it makes sense for all software, free, open, or otherwise, to clearly let the user know the terms of the license.
Free software distributed as executables should probably display some kind of copyright and license notice. It makes sense if this happens the first time the program is run -- perhaps saving in a
When it comes to source code, I'm not sure that any kind of click-wrapping makes sense. It's very easy to put a "LICENSE" file in the with the distribution and to have a copyright banner (and reference to the license file) at the top of each source file.
Click-wrapping may be a way of protecting the authors/maintainers/distributers of free software from any unintended liability from the use of their software.
I think all free software packages should come with express statements of limited liability and warranty.
1) Software in binary form is without source code, so it wouldn't make any much difference if the GPL with it died
2) Source code Can Not have any click-through licence anyway
So, does this make sense?
I don't suppose Microsoft has anything to do with this "preserving" of the users rights ;)
My scenario assumes you went into Comp USA & bought a copy of MS Office, for example.
I believe it was Shakespeare who originally solved this issue. The quote is: "First we kill all the lawyers..."
"The only thing I expect out of lawyers is that they be back in their coffins by sunup."
--F. Ross Johnson, former CEO, RJR Nabisco
"Straddling the sword of technology..."
Wouldn't the binaries (including any modified versions you created from the source) be considered derivative works, and therefore covered by the original and ordinary copyright?
Only the dead have seen the end of war.
God, how annoying.
One of the many reasons I left the MS world was shit like this, now they try to bring it to linux?
I don't give a shit what the legal reasons are, we've been fine without this shit. We don't need it.
If I download some app which bugs me like this, I will delete it.
Consider carefully, developers. In the end a user like me doesn't give a shit about the laws, I just don't want bothered by annoying bullshit.
-- Note: If you don't agree with me, don't bother replying. I won't read it.
You don't have to agree to it!
What nearly everyone else here has mentioned is that if you don't agree to it, you are bound by copyright law. If you don't like the GPL, don't take advantage of the rights that it gives you. Simple?
You can't judge a book by the way it wears its hair.
Move along, there is nothing to see here.
And to the authors of GPL'ed software with a click-through licence, I will not use your software. Shame on you.
---
IMHO, of course.
May the SOURCE be with you.
The GPL is not a End User License Agreement. EULAs restrict the rights of the End User.
If you want to install emacs on your computer, you don't have to agree to anything. If you want to install Microsoft Word, you are bound by the EULA.
If, however, you want to redistribute emacs or modify the program, you are bound by the GPL. If you want to modify of redistribute Microsoft Word, you may be held liable for civil and criminal penalties.
I suppose if you distributed emacs without source, those same penalties might still apply. The GPL is so much easier...
I'm tired with all those useless and complicated licenses. Why should a developper worry about all that crap?
Here's what I propose as a license
"Do whatever the hell you want with the software but don't sue me."
Well in these times there are some guys who offer you something for free, lets say a gif format image or a jpg format image, They wait a few years to the thing to spread taking advantage that users THINK it is going to be free.
And when the user base is large enough they simple say it is not for free anymore, earning a Lot of money, that they would never had earned if they had charged money for it since the first time.
So it is very important that We know that something that We call free is going to be call free forever.
So it is very important that someone who intends to give something for free, give a license so users are protected, against this kind of deceiving actions.
Personally I would like to sue the guys from gifs and jpg for such a fraudulent behaviour,
and for creating the necesity of this kind of licensing problems to the whole community.
I took an Econ class this summer for college. It was rather boring, but the one thing that I really got out of the class was this: the more expensive the lawyer, the better a chance you'll win when someone sues you.
What does this have to do with software? Well, a cheap lawyer will tell you this:
Software is covered under copyright, and copyright grants your work protection by default. We don't need a shrinkwrap on a book to note that copying it is illegal; the same should remain true of software.
An expensive lawyer will laugh at that response and will tell you that you need to set up every possible legal defense if you don't want to get sued for millions of dollars. And the best line of defense: be the first to state the rules of the game. If the other team has to play by your rules, you have much better odds of winning.
So, when it comes to software, be it commercial or open source, it's always safer for the publisher to present the license (which goes far beyond the limits of ordinary copyright), because it gives them the advantage in court. Whether or not the license is legal under Copyright Law doesn't matter, because (the other thing I learned in Econ) the first line of defense in court is not the law, it is FUD. If you have the more expensive lawyer, the bigger contract, and the Italian-quality suits, you stand a better chance at frightening the other party into submission.
Say I wished to distribute a working copy of some JavaScript code on my web-site.
So I'd need to have a click-through before the JavaScript was served.
So I'd have to write a new page and maybe a new script to handle that click-through.
However, being the stubborn GNU-head that I am, I'd insist that this click-though page should be open source too.
So I'd need a click-through before that page was served.
Lather, rinse, repeat...
THL.
Keeping
This is no problem. Since it isn't me who runs the software, but rather my computer, I've started a sourceforge project to define an API for a kernel daemon to automatically detect and accept any click wrap license agreement. I'll never even see it. And if someone wants to sue, they can either fine or incarcerate (their choice) that daemon to their heart's content. (apply smileys liberally for the satire impaired.)
The thing about things we don't know is we often don't know we don't know them.
Yes, I had thought of those. But I can't imagine anyone who's asinine enough to download for free a random piece of software off the Internet, compile it, put it into production use, then when it fails, attempt to sue the author. And I especially can't imagine a judge moronic enough to believe the guy.
I "license" my software by releasing it into the public domain, and include no such disclaimers. If you're senseless enough to assume I'm guaranteeing it to be flawless to the world, well, I just can't see that being held up, regardless of what laws may be on the books.
My "license" boilerplate:
# This work is public domain. The author hereby releases all copyright.
# Anyone may use, reproduce, and modify this work without restriction.
#
# "...for the more there are who say 'Ours,' - not 'Mine' - by that
# much is each richer..." -Dante (Purgatorio, XV)
..would be the old; "I have something to tell you, but you have to promise you wont get mad" bit. How do you really know until the cat is out of the bag?
If it won't boot, Fsck it!
I read about it, I feared it, I even preached about it... NOW it seems that it just might happen, every aspect possible being pushed to kill opensource or even free software so market dominating giants are created--even rallied for by the goverment and payola
Item 7 of the OSD says that you cannot require the execution of an additional license.
I view terms enforcable because of a click-through to be an additional license. If it is not, then I would like the OSD amended so that it is.
Copyright law prevents you from copying software, to use software you generally copy it (onto a hard drive, into memory whatever).
Without permission from the copyright holder doing so is in violation of their copyright.
You must either agree to the license, or you are violating the copyright. By not reading the license or agreeing to it (which is just fine) you are violating the copyright, and hence are not permitted to use the software anyway.
The nice thing about this license, the license is in an editable text field: if there's a term of the license you don't agree with, just delete it.
In fact, before I downloaded the stuff, I deleted the entire license and replaced it with something like "No restrictions; anything goes." I'm sure there are even more clever edits out there. Heck, visit today just to accept the license.
Your imagination may vary.
The thing about things we don't know is we often don't know we don't know them.
(please note - I'm speaking in generalities here - comments to the tune of "such-and-such-a-license doesn't do that" will be ignored.)
All of the licenses you mention grant abilities to the user - abilities that wouldn't be available to them under traditional copyright law. "Clik-wraps" seek to remove rights that would be otherwise available to the user.. by allowing them, you're starting down the old slippery-slope..
Our industry is maturing
This is the exact reason why you must not allow "click-wraps"
Click-wraps are an attempt to prevent this maturation... they typically attempt to absolve the author from liability and warranty, and/or to grant them absurd (and usually distasteful) powers.. (think the Win2K SP3 - blatant invasion of privacy, all to fix bugs to software you have already paid for)... A truly "mature" art will be very well understood, and be subject to peer-review (which is one of the benefits of open source); allowing a license to prevent this (which is common in click-wraps) is a serious step backwards in the evolution of software design.
Most things that are referred to as "EULA"'s are in fact commercial contracts and often attempt to restrict the way a given piece of software can be used by the recipient through the language of common contract law.
While I cannot offer any thoughts on most of the licenses the OSI may choose to endorse, the GPL operates using copyright law rather than contract law, and only comes in effect when distributing software; indeed, it is the only legal instrument available to permit one even to (re)distribute a GPL'd package since otherwise copyright law would prevent you from doing this.
Since no actual ownership changes hands and no contract is formed between the distributor and the receiver governing the continued use of the software that would require their further assent, I do not believe click-thru license questions even apply to the GPL.
Looks like Bruce is having a rough couple of weeks.
It's so nice to have a leader in FS or OSS that isn't an egomaniac. Not that I have a problem with our resident egomaniacs, but Bruce Perens is a welcome relief. He doesn't even insist that we know his middle initial!
There are no trails. There are no trees out here.
My only question is about acknowledging the license. As things are now, some could claim ignorance that there was a notice. Very often, it is included in the package, but no reference is made to it in the acquiring of the package.
"click-through" licenses are often displayed before you download the software, thus ensuring that the user was aware of the license before being granted the product.
If I were to offer, via a virtually free distribution, a recipe for how to make [insert fancy item], is it reasonable to expect that the people I offer this to will know it is not in fact public domain?
I am not an overly large fan of "click-through"'s either, but I do think they could strengthen many licenses under which software are covered. Especially since they are clearly available BEFORE you should have agreed to them.
As an aside, I particularly dislike the idea that without that license I could not have downloaded it. If only because you have to download it before you could read the license. This is worse then the EULA, in my oppinion.
Copyright is a law. If you don't agree to the license (contract) then you are bound by the more restrictive copyright terms.
In addition it's laws that make contracts binding. "Everyone knows" that software is bound by the copyright law AND the license agreement (contract). You can say that you didn't know, but I beleave that that's not a valid (read as legal) excuse.
Especially if you're a developer you should know this. (We're only really talking about developers that are modifying the code, not users who execute the binary results of that code.) If you know this then you should look for and read the license.
While copyright exists, a 'click-through GPL' is unnecessary because everyone is *by default* forbidden from distributing the software. They gain this privilege by accepting the license.
If some day copyright goes away, then we'll be in a different boat. But then there won't be as much of a need for licenses like the GPL, because the culture will be so different.
There are many different legal mechanisms one can use to control distribution of software.. Off the top of my head, I know of:
Copyright
Patents
ShrinkWrap Licenses
Technical Means (DMCA in the USA)
I personally disagree with the implementation of most the above. Copyright terms are too long, Patents are given out frivolously for types of things I personally don't believe should be patentable (business methods, software, algorithms), Shrinkwrap licenses are a one-sided travesty of a contract, and represent a blatant effort to avoid consumer protections based on ownership, and the DMCA is just an unjust pile of total crap.
Of the above, copyright is the least objectionable distribution control device. Therefore, I prefer licenses that rely soley on copyright rather than one of the other means.
I would be very much put off by a license that enforced the use of a click-through agreement. I dearly hope OSI and the FSF reject such things.
As I understand clickwrap is meaningless by some of the very basics of tort law. You simply can not force additional requirements on a user after the transaction has been completed.
Fanatically anti-fanatical
I don't believe that click-wrap is necessary for the GPL except probably for the warranty part:
11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY
FOR THE PROGRAM, (...).
That a product is free doesn't mean that it's allowed to cause dataloss or the like. You could be liable for damages if the license wasn't explicitly accepted by the user. Well, you even could be liable with her/his agreement as different countries have very different rules on product liability.
Yes, please comment on my spelling and writing style, I'd like to get better...
If you install any Linux Mandrake since 7.1 I think, you are welcomed with a licence agreement screen. If you disagree with the licence (which basically says "all is GPL, no warranty, have fun!") then too bad, you can't install.
It's a good move I believe, although I had to manually push my jaw back in place when I saw there was a licence agreement to agree to.
Artaxerxes
First, it's necessary for you to divorce copyright from warranty in your mind. Warranty does not necessarily follow copyright. In many cases, the warrantor will be the person you got the software from, regardless of whether they hold a copyright. And they may be able to pass on damages to the person they got the software from, perhaps the original developer. I think the risk to FTP sites is low, but to distributions, who put more active work into the process, and sometimes get a cash consideration, it's high.
The problem is what is the default in the law regarding warranties. If the default were clearly no warranty, Free Software would be OK. To the extent that the default is otherwise, we are less OK, and must deal with imperfect instruments for disclaiming warranties, and getting the user to agree to indemnify us (pay for our damages). But our goal is not to go to court at all. The minute someone has us in court, we're already losing money. So, we want it to be so clear that there is no warranty that nobody will ever try to sue. This is why people are tempted to use click-wrap. But I don't think that requiring it is the right solution.
Bruce
Bruce Perens.
"The submittor had already been asked if that requirement was a necessity. She said yes, because of various legal precedents.
Read: so because some lawyers have screwed somebody previously, everybody else needs to be ready to screw somebody back from now on..
"We consulted a few people and yes, it looks like a license without click-wrap is weaker at protecting your rights.
Read: you have to be ready to "protect your rights" because some lawyer will be attempting damage them.
"So, folks, the lawyers are coming.
More like a plague of locust...
"The time is coming when you won't be able to distribute software unless you have presented the license to the user and their assent is necessary to access the software. Even free software.
Nonsense. If you can conduct yourself amongst your fellow citizens honestly and morally, you won't need to worry.. And this goes for both sides of the transaction.
"Our industry is maturing and we need to be more legally careful and rigorous.
"Maturing"? Hardly.
Nonsense again.
What it comes down to is an arms race: because some *sshole is willing to use a suck*ss lawyer at the drop of a hat, you're supposed to be ready to fight back at the drop of a hat. With another lawyer.
Unless, as I said at the top, we simply take all the lawyers out and shoot^H^H^H^H^H re-educate them.
t_t_b
I'm on PJ's "enemies" list! Are you?
send all spam to theotherwhitemeat@ropine.com
For those who are unfamiliar with the concept, it's simple - you download the software and install it. You might have to deal with click-wrap. If you like it, you pay some fee for it (I've never seen more than $50, and that was for an OS/2 PPP dialer with features), and if you don't like it, you don't pay and presumably uninstall the program.
With this in mind, perhaps click-wrap could be slightly redesigned. You disagree, you uninstall, you fuhgetabadit. Thoughts?
This sig no verb.
I work with a MacOSX based package manager called fink. It essentially allows users to automatically download, compile, and install software.
Each package description contains a license field. One such possible value for the field is "OSI-Approved". As fink is frequently used to automate package installations, a shrinkwrap licensing requirement would be most cumbersome, and require extra debugging. We'd have novice package maintainers submitting shrink-licensed packages with "OSI-Approved" designations, but without the logic to handle "shrinkwrap".
Ignorance of the law is no excuse for breaking it. Ignorance of the license is no excuse for breaking it either. The licence already comes with the software. If a user can't be bothered with reading the README and the COPYING files, what makes you think they'd read the click-trough licence?
The licence is already there. If people want to read it, fine. If they don't and then break the licence agreement it shouldn't matter to the court if they were forced to read it or not. Nobody forces you to read the law either; but that doesn't make "I didn't read the law concerning theft of physical property" a valid excuse in court for me to get away with stealing your car.
Install windows on my workstation? You crazy? Got any idea how much I paid for the damn thing?
>So putting the BSD license, which effectively waives your copyright
c ense.php
WTF? The only thing the BSD license keeps is the copyright.
Ref:
http://www.opensource.org/licenses/bsd-li
Snipped parts:
Redistributions of source code must retain the above copyright notice, this list of
conditions and the following disclaimer.
If I write code, I can put the shit up anyway I fucking want. Fuck the lawyers. Fuck the law.
Fuck your stupid Bullshit
By default (in the US) you have no rights to do anything with the software, even run it.
1 7
You have several misconceptions about copyright law.
Copyright grants exclusive distribution rights to the creator, however there are limitations to this specified in Title 17. Two of those are the right of the user to utilize the software(i.e. by making a copy into the machine's memory) and to make a backup/archival copy.
http://www.copyright.gov/title17/92chap1.html#1
That's pretty much all copyright law covers.
All of the other various provisions that you see in licenses are all part of contract law. Basically "I will sell you a copy or let you use a copy, but you must abide by these additional terms."
I think it's disappointing that Free Software advocates try to distort debates on copyright law.
She said yes, because of various legal precedents. We consulted a few people and yes, it looks like a license without click-wrap is weaker at protecting your rights.
Perhaps Russ Nelson (or anyone else, hint, hint) could let us know what these precedents are.
Without that information, if it's free software we're talking about, it's awfully hard to steal what's already free, and I don't think that the good folks at cygwin are checking to see if I'm running their code on my PC.
So I assume the precedents involve somebody taking GPL'd or similar code and using it in commercial products, or using in in products for which they're unwilling to release the source. (For a question about this, see below)
It's conceivable that this has in fact happended through more or less honest mistakes, as well as through malicious intent. Imagine that Joe Hacker gets his hands on some GPL'd code, modifies it, and posts it on his web site (or on usenet, even more likely) without also posting the license, or with just a link to the license. So Jack Corporate guy sees it, doesn't realize the code is GPL'd, and (pun intended) incorporates Joe Hacker's code in BigCorp.com's latest commercial, closed-source offfering.
So the original coder realizes that the crufty algorithm used in BigCorp's program is his, and he or the Free Software Foundation sues BigCorp, asking that BigCorp make the source -- all of it, including stuff that didn't proceed from the GPL'sd code -- available as per the terms of the GPL license.
Now, either Joe Hacker, the modifier, made the GPL license available or he did not. If he did, he made it available in some less than conscpicuous way, and BigCorp its programmer Jack Corporate say they never saw it. Or, worse, Joe Hacker never made the license availble, becuase he never read the GPL license, because he was just doing some monor mods. And so now BigCorp argues that as far as it knew, the code was in the public domain.
Again, their needs be no malicious intent, only carelessness. Having a click-through license would give the lawyer for the FSF a chance to say, "But surely you saw the license when you installed the original software?"
The problem, of course, is that Joe Hacker woulg have seen it, but Jack Corporate still would not have seen it, as it was Joe who posted the modified copy without the license.
Perhaps the best solution isn't click-through, but putting the license (or, more tolerably, some reference to it, on each and every source file. On the other hand, isn't this already standard with GPL'd code? (This is why I'm interested in those precedents Mr. Nelson mentioned.)
Oh, and the question I mentioned above is actually at least two questions: my understanding is that using any GPL'd code in a product means that all that product's code must be made available, not just the GPL'd part, to anyone who receives a binary. But what if I limit binary distribution to my own corporation or group? Can you -- outside my corporation or group -- still sue me to get my source? What if I port GPL'd code to another programming language? Is the ported code considered GPL'd?
Opinions on the Twiddler2 hand-held keyboard?
There are many reasons why click-through licenses are bad:
- They obviously place the software distributor in a place of power over the end user, something that free software is supposed to combat.
- There is no clear way to define who agreed to what. What if the purchaser isn't the same as the user? What if a user installs software on a computer and then resells that computer, with it's software, to another user.
- Software licensing is too complicated. That complication is a barrier to entry for small, independent software authors. Promotion of a software "fair use" doctrine that says that click-through licenses are unnecessary seems to be in the public interest.
- Click-through licenses provide a convenient method for a downhill slide towards prohibition of other fair uses, such as reverse engineering or published benchmarks or criticism. They may also provide a mechanism for other onerous goals: censorship ("you agree not to use this software to produce communist manifestos"), patent abuse ("you agree that our patents are valid"), barring trade or competition ("you agree not to sell this program to Pakistan or the FBI")... The list is endless. Not that this is what's planned, but once the door is opened, who knows where it leads?
- Every additional click-through license in use marginalizes the existing non-click-through licenses, making them seem more like some lunatic fringe rather than plain use of copyright law. No matter how OSI feels about the FSF and the GPL, I as a user understand and appreciate the GPL's stand on this issue: "You are not required to accept this License, since you have not signed it.
- Click-wrap licenses, if they spread to other media, will quickly lead us into a "pay-per-use" world. Click-wrap issues have barely been touched by the courts, and a small push in the right direction now may help keep us away from that path.
Please fight to keep click-wrap licenses away from Free and Open-Source Software. I understand that overly cautious lawyers (is there another kind?) will wring their hands over the idea of bucking the trend, but this is a battle worth fighting."Use" contracts make no sense (and have been shot down by courts when applied to other copyrighted content). Though you have not provided any details as to why the party in question wants them, I fail to see a compelling legal reason why they should be allowed.
Please reply to eds at reric.net if I can be of any assistance.
314-15-9265
If I install an unlicensed ("pirated") copy of commercial software can I sue the vendor if it causes damage to my system? I have not agreed to any shrink-wrap or click-wrap license.
Same here - installing LILO requires *copying* it to your hard disk. You are granted the right to do it under a specific license which includes the "thou shalt not sue" clause. If you sue you are in violation of the license and should be treated no differently than someone who installs "warez" and violates the license by not paying. He can't sue the vendor.
(Or perhaps he can, but is likely to be countersued for copyright infringement? IANAL)
Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
I'm more than willing to accept a short and simple click-through license that provides both parties almost no rights to eath others "information". In short, they have no rights to do information gathering on me, my software, etc, and I have no rights to do anything more with the software than evaluate it's basic functionality in whatever limited manner it's creator finds acceptable.
Should I find the software meets my needs, I would then be willing to deal with the longer more complicated licenses that may be required. Under this scenario, I would even be more than happy to have the community approve a closed source evaluation license provided it was followed by an open source final license.
I belive this to be an acceptable compromise in both open and closed source applications. It allows potential customers to evaluate software solutions before agreeing to all the terms that the full license may require.
No Zen is good zen
The issue is not whether OSI should require that licenses contain a click-wrap provision. That was never under consideration.
Some of us attorneys (scum though we may be!) believe that courts will not enforce a license unless there has been a clear manifestation of assent to the contract expressed by the license. Those of us who share that belief, which is based upon our reading of many court cases, want to allow licensors to include a click-wrap provision in their open source licenses.
Some of you referred to the article by Eben Moglen to the effect that the GPL doesn't require assent because it isn't a contract. Nobody ever suggested that the GPL be amended to include a click-wrap provision, or that anyone modify their GPL software startup scripts to include a click-wrap button. In fact, nobody ever suggested that *any* existing open source license be changed to include a click-wrap provision.
Some of you replied that you don't like click-wrap, or ignore them, or press the button to accept without actually reading the license.... That, too, isn't the issue. Merely because a license provides a mechanism for assent to its terms doesn't mean that all who fail to follow the procedure will be summarily executed. You simply won't be able to raise the defense -- if you're ever challenged for doing something not permitted by the license -- that you weren't properly informed of the consequences. But since I make it a habit of not giving legal advice in general fora like these, feel free to ignore what I say or to consult your own attorney for advice.
So please, comment on the issue at hand: Should the OSD be amended to make it clear that a click-wrap provision in a license will make that license non-open source? Or should licensors be allowed to include a click-wrap provision in an open source license?
A final note: Regardless of what OSI does, those of you who hate click-wrap licenses will remain free not to use any software that is licensed under a click-wrap license.
Thinking about this from a distribution's perspective (I am a debian guy) some questions come to mind.
1) when is the license to be "clicked"? At install time? run time?
2) if I take their code and include it in my GPL application would i have to add a click through stating I borrowed code from lawyer-1.2?
3) would it violate their license to "fork" their app and remove the click through?
If I have. To click. "I accept". For EVERY DAMN PROGRAM INSTALLED during a system setup JUST TO GET IT TO INSTALL OR RUN, I foresee complete insanity in my future.
Given enough hydrogen, just about anything is possible.
For OSS, the license is mostly a grant of restricted rights to copy and modify the software; use of the software is permitted because you own your copy outright and have fair use rights to it. With commercial software, the company refuses to let you buy it unless you agree to give up some rights you'd otherwise have.
There is one exception: the "No warranty" clause (GPL, section 11 and 12). This clause only makes sense in a usage context. If you're not using the software, you're not going to break anything with it. But, as is clearly stated above, you don't have to accept the license to simply use the software. This means that a user who made no changes to a GPL program could sue the makers for damages or try to use an implied warranty, although nobody else could.
Requiring that the user accept clauses 11 and 12 of the GPL in order to get the software, and requiring that anyone who redistributes the software must either impose 11 and 12 on the recipients or accept responsibility themselves, so far as I can tell, would be within the spirit of the GPL, since the GPL does impose essentially these conditions on the expected sort of user (who accepts the GPL and makes slight modifications).
Of course, in a sane country giving something away for free would carry as little liability as you could get with license restrictions anyway, but that is, unfortunately, not the situation, it seems.
When I am going to use Freeware (and its
almost 99% the case) a quick glance at the size on COPYING is enough for me to know the license is GPL (its about 17-18Kb).
I think click-thrus aren't allowable for
Freeware. De facto use of such software
is enough. Free doesn't need to be labelled. Free is default state.
Or are free [of charge] roads in America marked as such already???
The main thing is to communicate that
the given software is free. And
this is almost always clear from
the packages/tar-balls. Why complicate
things?
However, in some cases click-thru may be necessary. For example, if I am
going to use some kind of service
and I need to know conditions under which I can trust my data to that
service (if that is really important).
(That is because I do not have an
archive/package from which I could get
to know licensing terms).
I am not in principle opposed to the use of click-through licenses.
OTOH, a click through license needs to satisfy a more stringent test before it can be considered an Open Source license. E.g., it must include the particular code that is used to implement the click-through license. And the potential contents of the click through license must limit themselves to something like:
We acknowledge that we don't have any right to sue you no matter what happens. This is true if our data files become corrupt, either partially or totally. We abandon all rights to consequential damages, or any other. And we acknowledge that if we do initiate a law suit against any contributor to this software, that we are liable for paying the lawyers fees for the defense whether we win or loose, and that payment in advance may be required.
I.e., all that it covers is that there is no right to initiate a lawsuit.
I think we've pushed this "anyone can grow up to be president" thing too far.
Gentoo already deals with click-thru licensing for the portage items (packages) which require it.
/usr/portage/distfiles and re-run "emerge sun-jdk". I notice some Debian packages may do the same.
For exmaple, when you type "emerge sun-jdk", portage tells you to go download the file from sun by clicking thru their web-site agreements, You then place the file into
Imagine if it was more than a pithy Sun JVM that you had to do this for -- how about a message from portage listing 30 license URLs (the target package you want plus 29 dependencies) which you'll have to go and click-thru/download before. Is that going to be fun, or what!?
I think in these times of insideous, awkwark, "kinda" free licensing, it is even more important to listen to what Richard Stallman is saying about software and freedoms.
If software really were Free (as in speech) and open, then the GPL license (along with all other software licenses) would become invalid.
That said, the GPL does seem to push openness, fully using the "evils" of software licensing. I don't see how click-through can be any worse than language already accepted for "open" licenses. Still, it leaves a bad taste in the mouth. Some precedents blatently suck.
Personally I'll be flogging the public domain and sensible copyright over licensing in software for a long time to come.
Now, go jump out of the nearest window to rid the world of your idiocy.
If the license is included with the source it's covered by copyright law.
Also, if they absolutely must have a click through, do it on the web page that it's downloaded from. GNU has no jurisdiction there.
The man who trades freedom for security does not deserve nor will he ever receive either. - Benjamin Franklin
I believe that we should not enforce click-through licensing in anyway on the principle that the majority of people don't read them.
Some of you might be like, "Well, I read them, or at least overview them," okay, but have you hung around the folks that just use computers - they just download and click "okay" (I've done it a few times myself). But my point is that the vast majority of people do *not* read them - it's download, "ok", install.
So, why should we say, "You must 'click through this' as an agreement" when they haven't even read it? On the basis of principal alone that EULA's are rarely read, I suggest we in no way mandate nor even recommend click-through licensing.
Click-through licensing, to me, is a bit of a joke and I'd be suprised if it holds up in court; most people cannot and should not have to work through the legal jargon of those EULAs! Should we hire lawyers, ask them to work through the EULA prior to hitting "okay" at gobbs of $$?
I say no - do not enforce, mandate or recommend click-through licensing; the developer may do so if he or she believes it is to the best interest of the end user, but that is the end-developer's discretion.
I think binaries could also be considered a translation (into machine code) of the source code. Distributing (creating?) a translation without the copyright holder's consent is copyright infringement.
The ocean parts and the meteors come down
Laid out in amber, baby.
to recognize humor. Assholes. Yes, i mean you. The moderator whos about to make this -1. You fuck head.
Something along the lines of click-wrap can make a fair bit of sense, in that it elevates the license to the same sort of formal agreement as a contract. The sort of license we have now, where most users agree implicitly to terms that they have never seen, is pretty ideologically shakey. Many users can use the software for years without knowing they agreed to any terms whatsoever. They get told what they have is free software, so they don't go hunting for a license that in fact obligates them to certain things. It isn't 100% certain in the law, however, that a person can obligate themselves to much of anything without making a conscious choice to. In short, I think it is a good thing to put the license in front of the user to make sure they actually agree to it, rather than using it as a mystical legal machine to regulate their behavior without them knowing it exists.
Click-wrap licenses are mainly a problem because companies use them to force terms that are a little shakey within licensing laws. Active user agreement legitimizes these shady terms. But I think a fair license with click-wrap is a lot fairer and safer from misunderstanding than one without it. A bad license is probably a little worse when buried where the user can't see it.
Consider an example. Company A decides to open-source a piece of software. Novice user B downloads the latest build of it, and uses it to run his business. After a year, a software bug ends up costing B a few hundred man hours to recover from. Incensed, he takes A to court. A says, "Hey, our license indicated no warranty and that we would be held immune from damages." B says that 1) he never read the license, and thus never agreed to it, and 2) A did not make adequate efforts to make the user aquainted with the license restrictions. A says, "If you didn't agree to the license, you're not a legal user. Don't blame us."
Now imagine you're the average judge or jury. Will you conclude:
In closing, imagine property leases were handled in the same implicit manner as open software licenses. Imagine the havoc that landlords could wreak, above and beyond what they already do.
Do you agree to the 1,000,000 EULA's presented before you?
[YES to All] [No] [Cancel]
I have discovered that around half of the websites where I have to put in information about myself to get a free account have the privacy agreement written in a modifiable text field. Every time I find one of these I delete all the text before I click the "I have read and agree with the above terms" button. Just out of principle, ya know.
Hey wait.... I have an idea... what if I change the text to say that any time my personal information is sold to a company, the website owner has to pay me a $500 fee? Hmmm.....
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Incite and flee.
To have any kind of legal defensive as to why you are not liable, you'll need to have evidence that the user waived it anyway. If you allow for any method where the user can use your product without accepting, then that is a flaw of yours and you should still be liable.
This seems to be the crux of the problem right here. The burden should be on the consumer of software to show that there was some agreement gauranteeing that it was "safe" for them to run the software on their machine. Without such an agreement, it's their problem for even thinking about running the software.
This whole "default liability" and changing liability with licenses thing is BS. Default laibilities should be the lowest level that exist, any agreement should only increase liability on the side writing the document. Anything else is in an invitation to be eaten alive in legal red tape.
You think I'm liable? Prove it.
Get forking. Gnucleus (Windows Gnutella client) is GPL'ed and has a click-through. The panel simply has the GPL.
I generally agree with you. I think that the click thru procedure should be viewed as a legal mechanism to make a license legally binding (in some countries). The fact that a license requires that you acknowledge it, doesn't say anything about the rights that it gives or takes away, other than that it requires you to explicity acknowledge it. It doesn't say anything about the software and it's uses.
:)
'I can't think of a license under the Open Source terms that takes away rights, therefor I oppose the requirement of such click-thru license agreements.'
I think there are countries in which the laws concerning IP are less restrictive than in the USA. In fact, most countries are less restrictive. Some of those may even be too free, up to the point of not acknowledging copyrights (in some instances China for example. Papua New Guinea is another example).
For some of those countries, taking away rights may be a good thing. I for one wouldn't like someone stealing my code, and making money/fame/whatever off it without at least crediting me. Some countries' laws/customs allow for that. Contrary to popular belief here on slashdot, even the GPL takes rights away from people in those countries, if they accept it.
Therefor I think that a clicktru requirement in itself is not bad. It's the same as the GPL requiring that it included in any publication or distribution of a program. One should look at the whole package/license anyway, before installing/using a program.
Note: countries which don't acknowledge IP laws may also not acknowledge that a clicktru license is legaly binding. Trying to make a license cover all possible laws is unlikely to succeed.
Disclaimer: IANAL, but I'm studying to be one. I've been in law school for one year now, only 3 to go
the pun is mightier than the sword
I DON'T KNOW WHY LAWYERS LIKE TO MAKE EVERYTHING EVEN HARDER TO READ THAN IT NORMALLY IS.
The laws of several states in the United States require that the disclaimer of warranty and the limitation of liability be "prominent". Contract authors upcase those parts of a contract because they know that a judge will consider an all-uppercase paragraph "prominent".
Will I retire or break 10K?
If the FSF ever "wins" the GPL will vanish in a poof of smoke as though it never existed.
If this is actually true (and I hope it is), we should be able to track the progress of the FSF by measuring the size of the GPL. The smaller it gets the better the FSF is doing in the world...
By that arguement, click-throughs would probably be a major retreat for the FSF.
these are not USE licenses (frankly IMNSHO use should be covered under fair use doctrine anyway, making the whole "click through" issue moot)
Before the U.S. Congress passed the Digital Millennium Copyright Act (using a voice vote to hide the identities of those who voted YEA), it had passed a law creating 17 USC 117, which made use of a program (defined as making necessary copies such as into RAM) and backup of a program not copyright infringement.
However, under U.S. law, you can circumvent access control without infringing copyright, and you will go to jail for it. Given enough money, a publisher could buy lawyers that could convince a judge into thinking that a compressed self-extracting installer package contains access control.
Will I retire or break 10K?
You're a moron.
If the user never clicks through, does the license still apply to him? Any lawyer could sucessfully argue otherwise.
You think so? If I were publishing a piece of software, and I didn't have a heart, I could claim in court that your decryption of the installer without using the installer's GUI constituted circumvention of an access control device, which is a tort and a crime under Title 17, United States Code, section 1201.
Will I retire or break 10K?
I'm a bit bemused by the idea that clicking a button during an installation process can bind me in the same way as a physical signature can. At least with physical signatures on physical documents (or even the electronic kind used at many retail stores these days) both parties to the transaction have some record that can be used, later, to prove who agreed to what. With a click-through license, there is only the presumption of acceptance, based on some pretty dodgy inductive reasoning (since you are using the software you must have, at some point in the past, clicked the "Ok" button on the license screen, hence you have agreed to, and are bound by, the EULA!).
Now, I can see that, for OSI approved license, where the original license holder may be difficult or impossible to contact, such a licensing policy would be very inconvenient, but for the bulk of commercial licenses, a more positive assent to the EULA would be preferable.
Let me preface this by saying that I have read Bruce's posts in this thread and I find myself agreeing with almost all of them, so I'm not trying to dis him.
Bruce posts in this thread (as of my post right now): 23
Amount of karma this thread would have earned him (had his karma not already been 50, which I'm sure it was):16 points.
As of this writing, only 11 of the 23 posts had been moderated, and of those that weren't moderated, almost all were among the 12 most recent.
Predicted amount of karma earned by Bruce in this thread before it gets archived: 30 points.
It's rare that you're presented with a knob whose only two positions are Make History and Flee Your Glorious Destiny.
> Viola, no more hassle.
What, you've been getting hassled by Shakespeare's Twelfth Night?
Oh, you meant voila'.
If I am basically giving a product away for free.. explain to me why im going to waste my time adding somthing like Click Thru liscenses to it? If there was a need... wouldnt it already be there?
My lawyer once told me that if you might end up in court, the important point was to have a story to tell the judge. Here's a proposal for a GOOD story for open source/Libre developers. To the usual GPL text, add as follows:
This would not eliminate all problems, but it might prevent a company which was distributing your work from suing you. It would certainly be a counter-incentive, if your program was a significant part of the company's business plan: if they established that they could sue you, they would loose the right to distribute your program.Installing java apps has become practically worthless because you have to go back to Sun and manually click through every one of a bazillion different pieces. I've given up on tomcat and am going back to CGI for my web applications (though there's more to it than just the hassle of getting the pieces --- the whole java framework is crumbling under its mass IMHO, but that's another issue entirely).
The question is, can an open source licensor that *wants to do so* require a click-wrap on his/her license?
any software that's going to be open needs to be open. Part of the appeal is not having to click all those damned licenses. And if I'm not free to remove the clickthrough item, then it's obviously not free (As in freedom) enough for me.
In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
Click-wrap "agreements" do not constitute "agreements".
That would fly in the face of 2500 years of legal history and legal proceedings; things that were first documented at the beginning of the Roman Republic and coined during the heydays of the Roman Empire the way they are today. These practices survived the Middle Ages and have reached us in modern times, with very few alterations.
Applying these ancient traditions, constitutes the job a judge does for most of his life. He lives and breathes by these ancient traditions.
If you buy a copy of Windows, the agreement occurs when you hand over the money to the computer shop clerk en he hands over the box. Then, there is "agreement" for the sale: "Box for money". Neither party can alter the terms of what has been agreed then.
Agreements are always "inter partes". The author is usually no party to the agreement, and since you have not dealt with the author, you can therefore not have an "agreement" with him.
Further, the copyrighted work may remind you of the author's statutory rights under copyright law, but it can certainly not extend them. The copyrighted work itself cannot be a party to an agreement anyway.
Further, it is simply too late to agree at that stage. The exchange has already taken place.
The GPL relaxes the author's statutory rights under certain conditions. There is no need for an "agreement" to effect this. The GPL is not about your right to use the software, but about the right to "distribute" it.
You got it backwards maybe, Cliff? So you have a problem with agreeing to a license before using software, but agreeing to a license just by USING software is ok with you? Yeah, click-throughs suck, but lets be logical about its faults.
"Hot lesbian witches! It's fucking genius!"
may we see the licence? what exactly did the lawyers say, and what are the precedents?
in the absense of this info, i'll assume that the license says that the click-through must virally carry through to anyone else using the source. this is a bad idea. the license must be modified so that the user can agree at most once when installing a single piece of software; it is unacceptable for the user to have to agree 10 times to the different click-through licenses inherited by a piece of software (my "once" requirement includes any licenses for any libraries, dependencies, etc).
however, i have no problem with requiring something along the lines of:
"either this clickthrough notice is included or it is incorporated into a sufficiently protective one by the program that inherits the code", as this would allow a single, system-wide clickthrough assent to some sort of standardized clickthrough license.
Why not just structure expectations (and law) such that commercial software comes with some warranty by default and non-commercial software doesn't? Then you get into the problem of defining commercial and non-commercial, but that seems far easier than requiring all non-commercial software to include fancy mechanisms to disclaim warranties.
I hate call waitin`~+~~~
NO CARRIER
# apt-get dist-upgrade
- - -
downloading...
click-click-click-click-click-click-click-click
click-click-click-click-click-click-click-click
click-click-click-click-click-click-click-click
click-click-click-click-click-click-click-click
AAAAAARGH. hurting hands, fingers.
Repetitive Strain Injury!
Lawsuit!
--- Hindsight is 20/20, but walking backwards is not the answer.
Comment removed based on user account deletion
Here is a thought, why not program in either a usage or date tracker that would (for lack of a better word) nag the users to agree to a click through the EULA after said usage or time has passed? If you still felt that wasn't enough, place a small EULA at the begining that would state the BARE necessities including that after that amount of time you automaticly agree to the EULA unless the software is removed from the device... That way if the user gets some better than trial ware, but has one nag as their trade off. I would be willing to have to only put up with one nag if I was allowed to try things before you buy. P.s. I would put in a clause in the first EULA that would state that phreaking the file without consent or prior knowedge would make the second EULA active.
Hi, I'm coming from the Deep South of England here and we sure are getting a lot of them troublesome lawers on the rise. Just the other day I was sitting 'out back when I heard a rustling back in the bedroom. I took my shotgun and moved back. Two of those pesky lawers searching making a fast one for my wallet! Trying to undermine my freedom, democracy and economy no doubt! Dare thee! So I took those critters out straight up, no pause in my doors no sir. It's just something that's getting more and more common these days. Apparently it's all a matter of hygiene, if you keep the place from festering with decaying lawer soaps you can really cut them down from the source. No Ally McBeal in my back yard for sure. Caught one climbing over the back yard fence the other day. He was probably working one the basis that since there are no solid truths in life he could argue to satisfy the dirty greed! Dare thee! One shot to the back was all it took. He won't be bending the law no more! .....
When the freedom of computing and the Nazism of Law collide. .....
In my opinion these disclaimers are a very, VERY loud sign that the law is failing, being used by people and lawers to make money.
My dads being sued right now for Sexual Harrassment, not because someone wants justice but because they want money and vengance for him sacking her boyfriend (who was married to someone else). If she wins the whole company, it's employees and thier families will go under. How would that control any sense of sexual stupidity my dad has?
I'm not allowed anymore to do dangerous things. What if I want to drive fast? If no one but myself is in danger and I like danger why can't I?
If a computer program wipes my computer I am responsible. -I- should be jailed if I try to use the law to sue someone over it.
- because I can sue someone for it. And it's THIS that isn't right. I shouldn't be rewarded money as compensation for something! The law should do this.
A blog I run for the wealth
Russ, please drop that long-suffering attitude. We didn't ask you to do the job, and a good many of us would be happier if you'd find a successor who doesn't write things like You're probably the same kind of programmer who doesn't bother to lock critical variables because "none of that lock stuff is necessary". Join Brett and Theo on BSD, where acting the way you do is accepted.
Bruce
Bruce Perens.
Forget about TVs and food. For a better comparison, try this: Do I license books?
I don't own the copyrighted expression. I don't have any contracts from anyone, giving me permission to do anything. Copyright law forbids me to make copies of the book and sell them.
And yet, I can resell the one book itself. I can cross out words I don't like, or highlight words I think are important. I can write additional words in the margin, even though it's too small to contain a math proof. I can burn the book. I can burn the book and sell half of the ashes to someone, and keep half of the ashes for myself.
I can read the book. I can read the book with a magnifying lens.
If I throw the book up in the air and if gravity makes it come back and it hits my head, the author is not liable. If the book describes a crime and I am inspired by it and copycat the crime, the author is not liable.
If the book contains an ancient formula for summoning Yog-Sothoth and I incant the Words and Yog-Sothoth arrives and rapes my daughter, resulting in a bastard son who is half man and half god-thing, and the accursed inhuman half-breed (but I love the little brat because he's my grandson) shoots my neighbor's dog because it kept barking at him, the author is not liable.
All this, and no contracts.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
If these types of licenses are allowed to be called "Open Source", then one good thing will come out of it: Never again will anyone get confused between the meanings of Open Source vs Free Software.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
I think the reason that click-wrap agreements are annoying in commercial software is the fact that you are being presented with restrictions on something you have already paid for. Yes...I know that open source doesn't necessarily mean free of charge, but a click-wrap agreement for these is more like "here's the terms we're offering the software on, take it or leave it". Not much harm done here. Of course not having a click-wrap agreement would be least annoying, but apparently it has some legal advantages.
There is a big difference between all OSS licenses that I know of (BSD, GPL and LGPL) and commercial licenses:
You don't need to agree with the license in order to use the product.
I remember a windows GPL:ed program (might have been a port of the GIMP) that in the installer showed the GPL like most programs show a license, but with the difference that a text below the small scrollbox said something along the lines "Please note that you don't have to agree with this license to use the program. You only have to agree with it if you want to redistribute this program" and there was only one button to continue (think it said "cool", definitely not "I agree").
Here is how I see it, but IANAL:
If no special license is agreed upon, then normal copyright laws apply. Since basically all non-OSS licenses restrict the users rights (compared to copyright law), they need to force the user to accept the license in order to use the program. They also have to convince the court that the user has seen and accepted the license before installing, thus click-through licenses.
Since OSS licenses don't restrict users (compared to copyright) but instead grants extra freedoms, there is no need to accept the license ever. If somebody violates the GPL he can't state that he has not agreed upon the license, in that case he has violated copyright instead and he's in trouble no matter what.
My impression is that the company who wants a license demanding click-through either has not thought about it enough or is trying to get a license passed as OSS compliant when it in fact is not. In either case it would be wrong to accept it.
> It's nice to let them know as a favor, I
> suppose... Mozilla shows the license during
> install.
hehe, Mozilla does it, because Netscape needs it.
In the sense of Gracenote/CDDB...
From "Why freedb?": "One programmer told me, that his cd-player will be banned if he is refusing to display the CDDB-logo. His software is a console-based program [...] for blind people..."
If you don't have to agree to the GPL license to get some software packge and use it, then it would seem that your basically saying that once I have the software package I can do anything I want with it. Since I didn't agree to a license you can't restrict me with it, thus I can reasonably assume that you were putting the software in the public domain since you put the source code and everything out there free for the taking. Thus based on this logic I can then do anything I want with the code including making it a commerical package or including bits of it in my commercial package.
If this isn't the case then you are actually putting restrictions on my use of what appears to the "common man" to be something that would normally be found only in the pubic domain.
The GPL is a license and it does require accent to it to get the software. If you don't agree to the license then you don't even have a right to the copyrighted source code/program, which in this case is licensed under the GPL. Copyright does not say that anyone has a right to get my stuff, copyright allows me (the copyright holder) to determin if anyone gets it, and on what terms they get it (as allowed by or limited by law). Under copyright law I can say that no one is allowed a copy of my work and that it is all private for my use only.
Also I do not need a sale or purchase to enforce my license of my software. I can say I am giving up these rights (my private exclusive use) in exchange for you agreeing to these terms. Or in other words the only way I am going to let you have access to my copyright material is under the following conditions, you don't like the conditions then I'm sorry you can't have access to my copyright material. The exchange of money is in a way, beside the point, in the eyes of the law when it comes to copyright law and license/contract law. I have given up something and you are agreeing to my terms, thus getting something, the copyright material, and agreeing to my restrictions (when compared to the public domain) thus in theory you are giving something up. In the case of the GPL I am theorically getting something too, any modifications (your copyright work) to the (my) copyright work if you distribute your changes.
Thus the GPL isn't that different from most license agreements and depends on the law to enforce it and give it some teeth. It would seem that if the GPL didn't depend on contract law for its basis, then it couldn't be expected to force people to distribute the source code to their changes when they redistribute a modified version.
Thus it doesn't seem to me to be that weird for a GPL software package to have the option of using a click-through license that basically says if you want this software here are the terms that you must agree to in order to get it. Yes, not every user will redistribute modified GPL software, thus not many would trigger the need to enforce the license, but the law doesn't care about anything but what would be potentially the exception in this case.
Did you not read what I said. Since you hadn't read the license prior to downloading the software, you have already violated it.
That is what makes that argument stupid. You are offering something on an ftp site *which allows anonymous logins* and then you expect people to know all the details of a license. The click through licenses work by basically allowing the download of the software, but not the running of it prior to reading the license.
I would think it would be suffecient to post the rules on the ftp message upon connect. Most places, however, simply say something such as "Have fun."
So... I know that things are automatically protected, but if I allowed anyone to view my lifes work in written form *anonymously* with an easily provided method to take a copy of it and sign saying please do so, I am pretty sure a case could be made that I was opening it up to public domain.
Now, if I made sure you read a notice before looking at it saying that it was in fact licensed, that problem is averted.
If everyone feels that that is a non-issue, so be it. It doesn't make it any less annoying and misleading to me.
I personally use bold text to indicate prominence and readability.
So do I, when I can, and so do some proprietary software publishers in their printed manuals, but many of the installation tools support only plain ASCII or UTF-8 .txt (not .rtf, .html, etc.) in the EULA window, and .txt doesn't support bold.
Will I retire or break 10K?
The only difference between some software and viruses is the click through agreement that prevents you from sueing the creator for putting out software that breaks your computer.
Think Microsoft.
"by opening this attachment you agree to not file suit for any harm caused by the attachment"
Since a click through is binding, including one with a virus makes the virus legal... the user agreed to the actions the virus took.
This is itself a an argument against click throughs having any validity at all.
If voting were effective, it would be illegal by now.