Subject: RE: Open Source Click-Wrap Notice
From: "Lawrence E. Rosen" <>
Date: Wed, 7 Aug 2002 06:40:52 -0700

 Wed, 7 Aug 2002 06:40:52 -0700
> Only thing we are interested in is protecting ourselves 
> against product liabilities.  If there is consensus on this, 
> then why not agree to a uniform disclaimer clause, and 
> present the user with this disclaimer alone at the beginning 
> of install process?  

That is not the only thing I am interested in.  I am also interested in
giving my open source clients the weapons they need to enforce their
open source licenses.  I'm not sure that concensus has much to do with
it, since each licensor has the right to protect his interests as
strongly as he wants to.  The only thing that *this* concensus will do
is discourage some companies from releasing their code under open source

> [A difference of opinion may arise when people wish to 
> include arbitration clauses also.  Personally, I am against 
> use of arbitration clauses in any product meant for mass use. 
>  It is simply not fair to ask a consumer situated in India, 
> who downloaded a software from a server in australia to 
> arbitrate his dispute in California, US. (uh, I went off the subject)]

Ahhh, the old "it ain't fair" argument.  Take that one to the judge.

And wait while the judge cites 9 U.S.C.  4, which provides that "a
party aggrieved by the alleged failure, neglect, or refusal of another
to arbitrate under a written agreement for arbitration may petition any
United States district court which, save for such agreement, would have
jurisdiction under Title 28, in a civil action or in admiralty of the
subject matter of a suit arising out of the controversy between the
parties, for an order directing that such arbitration proceed in the
manner provided for in such agreement...."

> >By clicking on "I AGREE" below, you indicate
> >your acceptance of the software programs
> >included on this distribution under the terms
> >and conditions of the licenses applicable to
> >each of them.
> >
> Disclaimer clauses do not apply when the user does not have 
> actual knowledge of disclaimers.  An omnibus click-through 
> would not be of any use if we cannot show that the user had 
> actual knowledge about disclaimers contained in the different 
> licenses.
> Please note that signatures (and clicking on "accept" 
> buttons) show that the user knows and understands the actual 
> terms.  Unless we can show to a court that we presented the 
> user with the actual terms, it will not be possible to hold 
> the terms against him.  

I don't think that's true.  According to the judge in Specht v.
Netscape, "the few courts that have had occasion to consider click-wrap
contracts have held them to be valid and enforceable.  See, e.g., In re
RealNetworks, Inc. Privacy Litigation, No. 00C1366, 2000 WL 631351 (N.D.
Ill. May 8, 2000); Hotmail Corp. v. Van$ Money Pie, Inc., No. C98-20064,
1998 WL 388389 (N.D. Cal. April 16, 1998)."  The court said that
"clicking on an icon stating "I assent" has no meaning or purpose other
than to indicate [assent to an agreement]."

In Specht the defendants argued that they had not read the actual
license and were therefore not bound by it.  The judge wrote "This
argument misses the point.  The question before me is whether the
parties have first bound themselves to the contract.  If they have
unequivocally agreed to be bound, the contract is enforceable whether or
not they have read its terms." 

/Larry Rosen 

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