Subject: RE: Open Source Click-Wrap Notice
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Sat, 10 Aug 2002 10:50:28 -0700

> "Lawrence E. Rosen" wrote:
> > To: License-discuss
> > After private follow-up discussion among interested parties,
> > I am proposing the following Open Source Click-Wrap Notice
> > that can be used for the distribution of open source software.
> >
> > I seek the review of the participants on license-discuss, 
> > followed by the approval of the board of OSI to post this
> > on the OSI website as a recommended solution to the
> > click-wrap problem.
> 
> "Carol A. Kunze" wrote:
> I think this discussion is very useful.  However, it is 
> surely beyond the purview of the Open Source Initiative to 
> provide legal solutions for potential warranty liability.
> 
> On the other hand,  this work does need to be done.  And it 
> needs to be done by a combination of lawyers and open source 
> developers.  But the issues are much more legally complex 
> than the discussions that have occured on this list.

I agree with you, Carol, that the discussion that has taken place on
license-discuss, and previously on SlashDot, has cast more heat than
light on the topic of click-wrap notices.  The OSI board raised the
issue because we are faced with an approval decision on an actual
license that includes a click-wrap requirement and we wanted to obtain
community input.  We certainly got that!  

I proposed a particular solution, but it may not be the best and it
needn't be the only solution.

People are reacting in terms of what they want rather than in terms of
what they need to do to protect themselves -- as licensors *and* as
licensees of open source software.  I've heard too many people speak
about wanting to influence the courts by their behavior, perhaps not
recognizing, as we practicing attorneys unfortunately do, that real
judges care very little for such emotional and ad hoc arguments.  

I welcome suggestions on how to elevate the intellectual rigor of this
"debate" so that we can solve problems rather than merely talk past one
another.  What do the other lawyers on this list think we should do?

/Larry

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