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

Re:so what about non-gui's?

[monkeydo]

Nobody is saying click-through licenses would be required. The question is should they be allowable under the official Open Source definition.

The OSI board doesn't force anyone to use a particular approved license on any given program. What they want to know is should they approved any license that requires assent before installing the associated program.

In my mind this doesn't violate any of the other requirements of the Open Source Definition so I think it really matters more what is in the license than how it is presented. The questioner seems to be acknowledged the fact that the receiving party has to agree to the license for it to be valid, so I don't really understand the problem. The GPL (and any other open source license) can be violated just like commercial licenses. Instead of assuming the user agrees to the license make them say so if you want the extra legal protection. You might need it if you wind up in court.

Re:No.

[MattW]

Having read some of what Eben Moglen wrote, I'm inclined to agree. 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.

Re:That's not the issue!

[Bruce Perens]

This has got to be a troll.

Obviously, Free Software producers must be able to deny warranties, since they are not getting the consideration (money) necessary to provide them. People who want warranties should be able to buy them, either from the software producer, another software shop, or an insurance company.

It's different with cars, because cars have a high potential to do physical injury to people and are thus expected to be built to a higher standard.

Bruce

Re:It's time for OSI to return the OSD to SPI

[Bruce Perens]

They've had a request for approval of a licence. Is it not reasonable for them to consult the wider community on this issue?

Do you really believe they even had to ask? This one seems pretty clear to me.

I'm intrigued by this statement. Some time ago I compared briefly read the Debian Social Contract and the OSD and I didn't notice any substantive differences.

When OSI was proposed to me, it was a way of marketing Free Software to business. It's been instead driven as a schism from Free Software. And the OSD continues to diverge from the DFSG. I also reject that the folks running OSI are representative of any Open Source community anywhere. In the case of SPI, there is a membership and elections. And unfortunately, most of the OSI board don't have time for OSI - they're too busy with their companies, etc. So 2 or 3 people end up running it.

The whole thing makes me very uncomfortable.

Bruce

Please don't allow click-through.

[Eric Seppanen]

If there is a legal mindset that distribution of copyrighted content requires a legal contract between the distributor and each and every user or customer, I hope the OSI will consider it in the public interest to attempt a countering trend: the view that existing copyright law (as applied to books for the last hundred years) is good enough.

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.