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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.
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
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.
... 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?
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.
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?)
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.
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
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
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.
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.
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.
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
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.
- When do you stop wishing she will come back and go out and get laid?
I found that not masterbating at all for a few weeks helped me to get the incentive to get laid. That way, you're directing your sexual attention to real life girls rather than photos on your monitor, in a magazine or in your imagination.Also: try to get laid a few times, then look for companionship again. Once you're confident enough with the sexual side of things you can concentrate on the more important things such as long-term partnership.
(As for licenses, I agree with you. People only need to read them if they're going to do something that might land them in court.)
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!
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.
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.
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.
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//
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.
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 ?
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
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
What would happen in this example: Let's say someone builds a web site using Apache, PHP, and MySQL. Let's say each of these require a click-through license agreement. Now, does only the site developer have to click through and agree to the licenses, or will each visitor to the web site have to agree to them all (including, presumably, a license for the web site itself)?
If all this should have a reason, we would be the last to know.
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.
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
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.
...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 |
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
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?
Seriously, though, ignorance of the law is no excuse. Once you set a legal precident that every user must click-through and agree to the license agreement, then you're setting a precident that ignorance of the law is an excuse. Anyone could then claim they were "obviously" free to copy something if the copyright holder did not inform them of their license terms.
That, of course, is utter nonsense. The law used to require a simple copyright notice, period. That was sufficient to inform you that you may not copy the work, period. Now the copyright holder doesn't even need that. The law now says you must assume everything is copyrighted and you cannot copy it unless specifically told otherwise. It is in your interest to read any license that grants you rights beyond the legal default "none". Microsoft et.al. have established a precident here where they treat their customers like idiots who must be constantly reminded that copyright infringement is wrong; there's no reason for the Open Source community to join the madness.
If all this should have a reason, we would be the last to know.
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...
That's the problem. If you want to bring Linux to the masses, you have to go through all the shit that made Microsoft what it is. Agreements, legal mumbojumbo, lawsuits, big nasty corporations, dumb users, loosers, maniacs, etc.
There's more than just "a lot wrong" in my book. As soon as you wrap a program up with some obligation for the user (installer) to actaully _do_ something particular (read and affirm an agreement), you are restricting the user's freedom to simply to do what he wants with the code (for himself), i.e. going against the OSI way of thinking.
I don't think click-through and OSI mix, and I'm glad the decision was made that way.
THL.
Keeping
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."
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
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)
That's what I've been saying from the start. I've already switched to BSD.
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.
(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.
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.
The poster already said what was wrong with it. He disliked accepting something before he has had a chance to use it. Try reading the post thoroughly next time.
In any event, I agree with posting the license due simply to the fact that software is downloaded and you can not guarantee that someone has had a copy of the license fall out on the floor...But I disagree with the accept or don't run choice. Just give me a simple OK button and clicking the OK button dismisses the license window.
Now you can show in a court of law that I had a chance to read it. That should be enough. Not forcing me to sit down and pull out the dictionary to decipher this legal mumbo jumbo before I even get to use the software. Or say, write the documents in laymans terms such as the authors of THE NEW TESTAMENT saw fit to do.
I am sick of reading all this crap every time looking for the little twist that sells my soul, and all works produced by it...
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.
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.
send all spam to theotherwhitemeat@ropine.com
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".
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.
And how would you propose to impliment it?
This isn't windows where you can be sure that everyone is using a GUI, and
doing the install on a GUI... how about an OS install?
When I install even a very minimal Debian system I am sure that the software beinbg instatalled is not all licensed from Debian, in fact, only a versy small amount of it is. Some of it is the FSF, some of it is Xfree86, some of it is Berkley, some of it is licensed from other people entirely.
I should have to "click through" how many hundreds of times to get the OS on my box? How about if I want to impliment automated installs? Like say my office mate whpose job it is going to be to setup a research computing cluster... installing software in parallel on a whole cluster of boxen at once?
Secondly, I don't knbow if you read it but neither the GPL nor any other Free Software license that I have seen says much about USE of the software. USE is implied by posession, its Fair Use. You only need these licenses to DISTRIBUTE the software. Thats the whpole reason the GPL exists... to give people terms of a distribution license.
I think thats the major disconnect here, these are not USE licenses (frankly IMNSHO use should be covered under fair use doctrine anyway, making the whole "click through" issue moot) they are distribution licenses.... and not neede dfor use at all...
Its very simple. Legally you have no right to redistribute a copyrighted work by default. So if you don't accept the distribution license (GPL, BSD, whatever it is) then you have no legal right to distribute. So distribution implies agreement with the license.
-Steve
"I opened my eyes, and everything went dark again"
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.
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.
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.
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.
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
The biggest problem is that you are expected to read and comprehend this enormous legal document so you can, say, play solitaire.
I was installing some software for a friend. When we got to the click-through on one, I stopped, and suggested she read the whole thing. She just clicked through without reading it.
Then she advised me that the best way to not be bound by the license, were I ever to be sued, was to be able to state under oath that I'd never read the whole thing, and had just clicked "Next".
She works for the U.S. House of Representatives. As a lawyer on one of the technology committees.
Opinions on the Twiddler2 hand-held keyboard?
If you don't know what the law says, are you bound to obey it anyway? Ignorance of the law is no excuse, or so says the law.
-russ
Don't piss off The Angry Economist
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.
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.
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?
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.
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).
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
Oh, great, licenses in Greek, that's all we need :P
# 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.
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.
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.
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.