Slashdot Mirror
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.
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 ?
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.
... 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?
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"
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.
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
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.
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 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.
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'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.
You know what would protect us? Properly written law. Like if we could get the right text into UCITA instead of the wrong text that is there. I am not optimistic.
Bruce
Bruce Perens.
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.