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.

Comments

click-wrap limit

[Anonymous Coward]

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.

Copyright law protects you even without click-wrap

[st. augustine]

Copyright law says no one can make copies, period (with a few "fair use" exceptions, which are more limited than many /. readers seem to think). Without a license, you can't make copies; it doesn't matter whether you've "agreed" to the license or not. The only way you can make copies is under the terms of the license. If you make copies in violation of the license, you're in violation of copyright law. The reason commercial software has click-wrap licenses is that they want to restrict rights evem further than the law already does.

Have your lawyers read Eben Moglen on enforcing the GPL.

package-1.0/LICENSE or clickthru, what's the diff?

[jmd!]

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.

The GPL doesn'[t need a click-through agreement

[Animats]

The GPL doesn't need a click-through agreement, because it's about copying, not use.

Read the article by Eben Moglen, the lawyer who, for the Free Software Foundation, actually enforces the GPL.

• Because there's nothing complex or controversial about the license's substantive provisions, I have never even seen a serious argument that the GPL exceeds a licensor's powers. But it is sometimes said that the GPL can't be enforced because users haven't ``accepted'' it.

  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.

That's not the issue!

[Marx_Mrvelous]

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.

Re:This is nuts

[foobar104]

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"

That's not necessarily true. It probably is, but not necessarily.

The current legal standard in the US derives from Bell v. Combined Registry Co. In that case, the court upheld that the criteria for copyright abandonment is a statement of the intent to abandon (which in 1976 included omitting a copyright notice; this is no longer sufficient) and a clear intent to waive copyright. In other words, you have to both say that you're waiving it, and you have to distribute it to somebody under those terms.

So putting the BSD license, which effectively waives your copyright, and distributing the source may be sufficient to indicate an intent on your part to waive your copyright. Even if the license itself is flawed, your copyright has already been waived.

This isn't the case if you're a minor, or if you don't have clear claim to the rights over the source. In other words, if you don't have the copyright, you can't waive the copyright.

Would conflict with package managers

[Jeremy Erwin]

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".

Restatement of the Click-Wrap Issue

[lrosen]

As one of the people who was present at the OSI board meeting, and as one who expressed some strong sentiments about the click-wrap issue, I want to comment directly.

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.