Subject: RE: a proposed change to the OSD
From: Russell Nelson <>
Date: Wed, 30 Oct 2002 14:24:41 -0500 (EST) writes:
 > 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.

Right.  That's a different but related issue.

1) if there's no contract, there cannot possibly be any restrictions.

2) However Larry, Rod, and you feel strongly that there are benefits
that flow in both directions from having a contract with users.  And
in any case, you're going to want to form a contract.

3) But if there is definitely a contract, then we need to make sure
that the contract allows all the usual things that people do and
expect to be able to do, including use, modify, and redistribute.
While the OSD talks a lot about redistribution, it doesn't say as much
about modification and even less about use.  This makes sense given
the history of the document as a listing of what will go into a

4) So the OSD needs to say something about use.  However, existing
licenses already put limits on what you can do with the code.  The GPL
requires that interactive use announce a copyright.  If an author has
has that in a program, you can't take it out.  The OSL puts even more
limits on code.  If you make modified code available to other people,
even if all they do is run it on your machine, you have to let them
have the source.

5) I still want to modify the OSD, but I have to withdraw my earlier
simplistic use permissions.

 > 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.

Continuing to use software after seeing that it is licensed seems like 
a pretty clear and unambiguous and affirmative manifestation of
assent.  The key seems to be more the clear and unambiguous
presentation of the license.  If there is a barrier through which you
can pass only after realizing that there is a license, then proceeding 
through that barrier is assent.

 > (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),

Excellent weed, but I wish he wouldn't bogart that joint!

 > "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.

Good!  Without that term, I don't see how we could approve the
license.  You say "click-wrap" in the presence of hackers, and you're
lucky to escape with your life.

My suggestion is for source code to be packaged in a precise manner so 
that initially, the only visible file is one called "LICENSE", and the 
source code itself is in a hidden directory called ".I-agree-to-LICENSE".
It seems to me that a fully caffinated judge isn't going to let
someone claim that they didn't see the license, or didn't agree to the

I don't know how to deal with binaries.

-russ nelson     |
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