Terrific explanation! Thanks. Rod
Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden [EMAIL PROTECTED] http://www.cyberspaces.org/dixon/ My papers on the Social Science Research Network (SSRN) are available through the following url: http://papers.ssrn.com/author=240132 > > I've been following this discussion with interest. Since some of it is > generated at least in part by Sybase's submission of a license for OSI > certification (which is based on the OSI-approved Apple Public License, > with the addition of a click-wrap structure as a preferred alternative and > a few other far less material changes), I wanted to respond/add to a few > points. > > 1. Use Restrictions. It is not Sybase's intent (by use of a clickwrap > format or otherwise) to restrict the use of the software for any purpose. > Our principal interest is in protecting ourselves and other Contributors > from any liability arising out of any such use. > > Many of the existing OSI-approved license agreements, in addition to the > Apple Public License that Sybase based it's license on, condition > permission to use the software on agreement to the terms of the governing > license. For example: > * IBM Public License version 1.0 and Common Public License, > opening recitals: "ANY USE, REPRODUCTION OR DISTRIBUTION OF THE PROGRAM > CONSTITUTES RECIPIENT'S ACCEPTANCE OF THIS AGREEMENT". See also the > license grants in these agreements (Section 2), as well as in other > agreements, that specify that the grants are "Subject to the terms of this > Agreement". > *Nokia Open Source License (NOKOS License), Exhibit A and > the Sun Public License, Exhibit A - Both require a notice in the source > code files that states: "The contents of this file are subject tot the > [License] . . .; you may not use this file except in compliance with the > License". > > We are not trying to accomplish anything different from what these other > approved agreements are trying to accomplish. These other agreements are > clearly structured as contracts, not bare license grants,and use of the > software is expressly conditioned on agreement to the terms provided. > (This includes terms designed to protect the open source status of the > software.) The only material difference in the Sybase agreement is the > addition of the clickwrap concept as a preferred structure. > > 2. Clickwrap Structure. The key issue from our perspective, and the > reason for incorporating a click-wrap concept as a preferred structure, is > to make the disclaimers of warranty and liability, as well as other terms > of the license, enforceable. We don't care how anybody uses the software > that is subject to the agreement, but we don't want any claims or potential > liability from any such use. Unless there is a structure that under > current law gives some confidence that the disclaimers and limitations in > particular will be enforced, there is a real disincentive for many entities > to make software available on an open source basis. In my opinion, the > current legal reality is that because of recent case law , structures - > widely used as they are - that provide some notice of license terms but do > not require a clear, unambiguous, affirmative "manifestation of assent" > after an adequate opportunity to review may not be enforced by many courts > in many cases. > > The language in the Sybase agreement does not require a > click-wrap structure in all cases. It provides: " Whenever reasonably > feasible you should include the copy of this License in a click-wrap > format, which requires affirmative acceptance by clicking on an "I accept" > button or similar mechanism. If a click-wrap format is not included, you > must include a statement that any use (including without limitation > reproduction, modification or distribution) of the Software, and any other > affirmative act that you define, constitutes acceptance of this License, > and instructing the user not to use the Covered Code in any manner if the > user does not accept all of the terms and conditions of the License." The > alternative to click-wrap provided for is the same structure referred to > above that is already in some OSI-approved license agreements, while adding > the flexibility of allowing other affirmative acts to be defined. The > "reasonably feasible" qualifier should address situations where clickwrap > presents a technical problem. There may be better ways to provide the > necessary flexibility, but the intent was to provide it. > > The reason for preferring clickwrap is that such a structure has > been recognized and enforced by several courts. Other clear, unambiguous > and affirmative "manifestations of assent" should be adequate, too - as > noted in the article that Larry Rosen circulated, this is the key issue - > so long as the user has an opportunity to view immediately accessible > terms and reject them if he/she doesn't agree with them. But the courts > haven't addressed all of these. > > Larry Rosen's suggestion of providing one single > click-wrap notice to obtain affirmative assent to multiple licenses is > intriguing. I think it works if the single click-wrap notice tells users > that there are multiple agreements/licenses governing the software > components (and these are provided with and easily accessible in the > software), that they must review them before using the software (use of > "please review" was expressly rejected by one court as being a "mere > invitation", contributing to a finding that a license agreement referred to > by a notice, with no requirement for any affirmative manifestation of > assent, was not enforceable), and that they are bound by the terms of all > of those agreements/licenses unless, after having reviewed them, they do > not agree, in which case they must immediately discontinue any use of the > software. (Or something along these lines - I'm trying to focus on key > points that some courts have picked up on, not dictate precise language.) > > > > > > > "Lawrence E. > Rosen" To: "'John Cowan'" <[EMAIL PROTECTED]>, > <lrosen@rosenl <[EMAIL PROTECTED]>, "'Russell Nelson'" <[EMAIL PROTECTED]> > aw.com> cc: > Subject: RE: a proposed change to the OSD > 10/26/2002 > 10:03 AM > Please respond > to lrosen > > > > > > I'm getting tired of repeating myself.... > > I have proposed a click-wrap notice that would allow ONE single notice > for all the programs in a distribution. I believe that one notice is > legally sufficient and indeed necessary to obtain affirmative assent to > the licenses for the individual works comprising that distribution. > > Other lawyers may disagree, and every lawyer is free to give legal > advice to his/her clients. And if you don't like click-wrap notices, > don't use them for your software. Just to be clear, I will ALWAYS > recommend one to my clients -- at least until the law changes. > > /Larry > > > -----Original Message----- > > From: John Cowan [mailto:jcowan@;reutershealth.com] > > Sent: Saturday, October 26, 2002 9:51 AM > > To: [EMAIL PROTECTED] > > Cc: 'Russell Nelson'; [EMAIL PROTECTED] > > Subject: Re: a proposed change to the OSD > > > > > > Lawrence E. Rosen scripsit: > > > > > Russ, if it was your intent to prevent click-wrap notices, then I'm > > > While many in the open source community are opposed to such > > notices, I > > > will ALWAYS recommend to my clients that they use such notices for > > > their software, and that they require their sublicensees to > > use such > > > notices. > > > > That could get old real fast, when the typical program > > requires the use of a dozen component libraries to function. > > How many dialogue boxes are you willing to click on before > > the Gimp starts up? Or should each user when logging on to > > the system for the first time be presented with about 700 of > > them to click on? > > > > This is the "annoying [old-]BSD notice requirement" in a new guise. > > > > > Members of the community may not like > > > it, but the courts are clear about the importance of such > > notices for > > > contract formation. Whine and groan all you like, it's a legal > > > necessity.... I'll change my mind about this only after > > you succeed > > > in changing the law. > > > > I agree with what you say, but draw a different conclusion, > > viz. that contracts involving mere use (as opposed to a > > copyright-holder right such as modification) are a Very Bad Thing. > > > > -- > > John Cowan [EMAIL PROTECTED] www.reutershealth.com > > ccil.org/~cowan > > Dievas dave dantis; Dievas duos duonos --Lithuanian proverb > > Deus dedit dentes; deus dabit panem --Latin > > version thereof > > Deity donated dentition; > > deity'll donate doughnuts --English > > version by Muke Tever > > > > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 > > > > > > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
