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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.
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
... 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?
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.
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
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
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.
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!
Nobody is saying click-through licenses would be required. The question is should they be allowable under the official Open Source definition.
The OSI board doesn't force anyone to use a particular approved license on any given program. What they want to know is should they approved any license that requires assent before installing the associated program.
In my mind this doesn't violate any of the other requirements of the Open Source Definition so I think it really matters more what is in the license than how it is presented. The questioner seems to be acknowledged the fact that the receiving party has to agree to the license for it to be valid, so I don't really understand the problem. The GPL (and any other open source license) can be violated just like commercial licenses. Instead of assuming the user agrees to the license make them say so if you want the extra legal protection. You might need it if you wind up in court.
Si vis pacem, para bellum
The only thing more annoying than a Libertarian is an (un|mis)informed Libertarian
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.
Having read some of what Eben Moglen wrote, I'm inclined to agree. Software is covered under copyright, and copyright grants your work protection by default. We don't need a shrinkwrap on a book to note that copying it is illegal; the same should remain true of software.
dbt: 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.
pmz: What if you are evaluating a software package based on the ability to redistribute it or reuse parts of it? Prior assent is essential no matter the license, because even the GPL restricts some rights as a compromise for allowing others.
The GPL does not restrict any rights you, as a recipient of a copywritten work, already have. It does place requirements on you if you choose to exercise the rights of redistribution, modification, or creating derived works -- but those are rights that you do not have except as granted by the license, so the default assumption is that you cannot copy, redistribute, etc.
This is not to say that there is no need for a set of guidelines on how to communicate to users the NO WARRANTIES message. But I don't feel that requiring click-through in licenses is the right approach.
Bruce
Bruce Perens.
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.
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"
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