Subject: RE: Legal soundness comes to open source distribution
From: "Lawrence E. Rosen" <>
Date: Tue, 13 Aug 2002 23:18:01 -0700

I think you *almost* have it right, Rod.  

There are two different issues at stake here.

First, Bruce Perens and others have been concerned for some time that
the OSD does not address the right to use software; it is silent on that
point.  OSI has been asked in the past to approve licenses that impose
obligations on licensees, ranging from the infamous advertising clause
of the BSD that was withdrawn several years ago by the author of the
license, to licenses that require users to notify the licensor before
use, to licenses that seek to implement a click-wrap mechanism that
requires a user (not just a distributor) to acknowledge the formation of
a contract.  The fear is that these licenses are just scratching the
surface.  What should the OSI board do when someone proposes a license
that makes truly onerous demands on users?  

I have made it clear to the board that, because we have a certification
mark, OSI can disapprove of a license only if it does not comply with
the OSD; "smell" tests are not allowed to enter into the decision.  So
we all agree that we want to prevent smelly licenses that burden users,
but we haven't defined "smell."  

Several people, including Bruce Perens, Russ Nelson, myself, and most
recently David Johnson, have suggested wording for such an OSD
provision.  None of those versions has caused the others on this list to
stand up and cheer.

The second issue deals directly with click-wrap.  Perhaps it should be
broadened to include shrink-wrap, for both forms of acknowledging the
formation of a contract are potentially important for open source
software.  For example, Linux is available for download as well as in a
box sold in stores.   Some licensors and some distributors want to avoid
any ambiguity about contract formation.  They wish to follow procedures
to obtain the assent of licensees so that, in the unlikely event that
there is litigation, they can at least argue coherently that the
licensee explicitly assented to the license.  

In response to this concern, and in light of a specific proposed license
that wanted to *obligate* users and distributors to implement click-wrap
procedures, I proposed a Click-Wrap Notice.  I did not suggest it be
made mandatory, but I did ask that it be posted on the OSI website as a
standard way that people who want to can implement click-wrap.  Please
remember also that I called it a "notice" not a "contract."  If there is
to be a contract, it must be the license itself, not some brief notice
that purports only to highlight some important aspects of the license.  

The responses have been, to say the least, overwhelming.  I wish that
the responses had been more illuminating, however.  Good questions have
been raised about whether a click-wrap notice helps or hurts open
source, whether it is legally necessary and, if so, in what
circumstances and for which licenses, and whether it conflicts with the
desireable goal listed above to avoid burdens on users.

That's where you came in, Rod.

/Larry Rosen

> -----Original Message-----
> From: Rod Dixon [] 
> Sent: Tuesday, August 13, 2002 10:37 PM
> To: David Johnson; Carol A. Kunze
> Cc:
> Subject: Re: Legal soundness comes to open source distribution
> I want to summarize what we have discussed on click-wrap 
> because the issue is significant from the standpoint of the 
> legal standing of open source licenses, and so I can include 
> proposed responses in our research project on the OSD.
> It is my understanding that the issue initially involved the 
> approval of a license, not a change to the OSD. The 
> discussion of click-wrap then considered whether the fact 
> that adding indicia of mutual assent to website agreements 
> like open source licenses (e.g., a mouse click from the user) 
> might have adverse implications for the position that open 
> source licenses are "non-contractual" licenses. There was 
> also some discussion concerning whether click-wrap conditions 
> imposed on downstream or sub-licensees is practical (it may 
> be difficult to implement). Finally, some raised the question 
> whether the click-wrap condition is doomed to failure in 
> cases where distribution is packaged with multiple programs 
> carrying distinct licenses.
> Is this a fair summary?
> Rod
> ----- Original Message -----
> From: "David Johnson" <>
> To: "Carol A. Kunze" <>
> Cc: <>
> Sent: Wednesday, August 14, 2002 12:00 AM
> Subject: Re: Legal soundness comes to open source distribution
> > On Tuesday 13 August 2002 08:30 pm, Carol A. Kunze wrote:
> >
> > > You have to OWN the copy.   When I say that in a 
> proprietary license the
> > > licensor reserves title to the copy, I am saying the 
> licensor takes 
> > > the view that the user does not OWN the copy. ... If you buy a
> > > house you can do what you want with it, if you rent it 
> you only get the
> > > rights your lease give you.
> >
> > This is where the big disconnect occurs between the user and the 
> > manufacturer/licensor. When I rent a house, I KNOW that I 
> am renting a
> house.
> > But with software I have no clue. I have undergone every 
> single motion 
> > of purchasing a product, obtained a sales receipt that 
> itemizes a copy 
> > fo the software, yet I do not own it. Moreover, I don't 
> even know this 
> > fact until the first time I try to use it.
> >
> > I am of the archaic and jurassic opinion that law that cannot be
> understood by
> > the average layman is bad law. When the average consumer 
> thinks they 
> > are buying a copy of Windows when they are not, because the 
> law says 
> > they haven't, then the law is an accomplice to fraud.
> >
> > Skipping back to the middle of the last paragraph...
> >
> > >The payment that is made is for a license to USE the software.
> >
> > >From where I sit, it seems like the user is purchasing the 
> right to 
> > >VIEW
> the
> > license. Only when they actually view the license and subsequently 
> > agree
> to
> > it, do they gain the right to use the software.
> >
> > > I still do not understand why the OSI definition would have to 
> > > change.
> Why
> > > is the requirement for clickwrap any different from those 
> licenses which
> > > OSI has blessed and which in fact are intended to be 
> agreements?   Can
> > > someone clue me in here?
> >
> > The main issue in my mind is not the simple click-wrap. That already
> exists in
> > several forms for several Open Source products. Instead, the real 
> > issue
> (to
> > me) is whether an Open Source license can require 
> derivative works or 
> > downstream distribution to also use click-wrap.
> >
> > --
> > David Johnson
> > ___________________
> >
> > pgp public key on website
> > --
> > license-discuss archive is at
> >
> --
> license-discuss archive is at

license-discuss archive is at