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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.
There are many different ways to "buy" something. You don't buy it or rent it. You can rent something for an indefinite period of time, a definite period of time, you can buy something outright, you can buy an option to buy something, and you can buy rights to use something for as long as you exist (ie: a francisee has rights to use the company's logo for the life of his business or a utility company buys an easement). There's nothing inherently wrong with software licensing.
You didn't sign anything? So does that mean with OSS, I own it, and I can do whatever I want with it (including sell it), because I didn't sign anything? I could probably sell a good number of copies of RedHat as NineNineOS. After all, I didn't sign a contract, so it's mine!
Actually, OSS has an even weaker case. There's no consideration (payment of any kind) given for the software, or the right to use it, so under the UCC, generally the GNU would be considered an unenforceable contract.