> Carol A. Kunze wrote: > > I don't think this can work. A third party - in this case > the distributor > - cannot cause a contract to be entered into between two > parties, one of whom is not "present."
This points out one of the confusing aspects of different open source licenses. Some licenses are sublicenseable, meaning that the distributor has been given the right to offer licenses directly from the distributor to the licensee. Other licenses are non-sublicenseable, meaning that a license passes directly from the original author/licensor to the licensee, even though the distributor handles the distribution and exchange of the software. This is important for the legal principle of "privity," under which parties can sue each other only if they are in privity with each other. Here's a definition from Merriam-Webster: Privity: The direct connection or relationship between parties to a contract or transaction (as a purchase) (privity of contract) - Formerly a suit for breach of warranty or negligence arising from a product could only be brought by a party to the original contract or transaction, and only against the party (as a retailer) directly dealt with. Only these parties had privity. Under modern laws and doctrines of strict liability and implied warranty, however, the right to sue has been extended to those, such as third-party beneficiaries and members of a purchaser's household, whose use of a product is foreseeable. When you obtain software from a computer store, there is not an in-person transaction between the original author/licensor and you. Nevertheless, you have received a license to which you must assent (in those cases a shrink-wrap license). The licensor and the licensee can sue each other over the license without interference by the distributor, even though the licensor and licensee have never dealt directly with each other. I am now explicit in licenses I draft (see, e.g., www.rosenlaw.com/afl.html and www.rosenlaw.com/osl.html) that my licenses are non-sublicenseable and are direct from the licensor to the licensee. [There is a separate legal issue in these licenses relating to the licensing of derivative works; I do not address that point in this email.] The Click-Wrap Notice addresses the issue of privity in the following ways: * The first paragraph makes it clear that the user/licensee "will be permitted to install and use the software programs included on this distribution only if you click 'I AGREE' below." The phrase "I AGREE" is meant to indicate "your acceptance of the software programs included on this distribution under the terms and conditions of the licenses applicable to each of them," not acceptance of the Click-Wrap Notice itself. * The first point is repeated in the second paragraph of the Click-Wrap Notice, by which the user/licensee agrees that "the installation, use, copying, modification, and distribution of this software may be prohibited by law unless you agree to the applicable licenses." This is a restatement of basic copyright and patent law and, quite frankly, does not need to be agreed with to be valid. (This is one reason why the Click-Wrap Notice is a *notice* rather than a *contract*.) If the user/licensee does not accept the license, he is subject to copyright and patent law. See, e.g., Sun v. Microsoft. The notice merely informs him of that legal fact. The GPL relies on that primacy of copyright law, which is why the Click-Wrap Notice does not need to be accepted in order for the GPL to be effective; Eben Moglen has suggested that I add a sentence to the Click-Wrap Notice to make this point clearer. * The user/licensee acknowledges that "SOME OR ALL OF THESE SOFTWARE PROGRAMS ARE PROVIDED BY THE LICENSOR AS-IS, WITHOUT ANY WARRANTY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS STATED IN THE APPLICABLE LICENSES." This makes it clear that the relationship (privity) is between the user/licensee and the licensor. * To protect the distributor in such situations, I believe it is also important for the distributor to disclaim its own warranties (or, as an alternative, to promise warranties that make its distribution more valuable than the distributions of the same software by other companies). That is stated in the Click-Wrap Notice as follows: "[YOU FURTHER ACKNOWLEDGE THAT THE DISTRIBUTOR IS PROVIDING THIS DISTRIBUTION AS-IS, WITHOUT ANY WARRANTY, INCLUDE THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.] [THE DISTRIBUTOR'S WARRANTY TERMS FOR THIS DISTRIBUTION ARE SPECIFIED AT www.xxxxxx.com.]" This statement, expressing a relationship between the distributor and the user/licensee, is a form of contract and therefore *must* be agreed to. In that sense, the Click-Wrap Notice can create a contractual relationship, but it is one expressly between two parties dealing directly with each other. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
