My Linux Journal article on "Manifestation of Assent" is intentionally license-neutral. But for those of you who want to continue the legal discussion just among us present at license-discuss, here's what the Open Software License (OSL) currently says about the issue:
9) Acceptance and Termination. Nothing else but this License (or another written agreement between Licensor and You) grants You permission to create Derivative Works based upon the Original Work or to exercise any of the rights granted in Sections 1 herein, and any attempt to do so except under the terms of this License (or another written agreement between Licensor and You) is expressly prohibited by U.S. copyright law, the equivalent laws of other countries, and by international treaty. Therefore, by exercising any of the rights granted to You in Sections 1 herein, You indicate Your acceptance of this License and all of its terms and conditions. This License shall terminate immediately and you may no longer exercise any of the rights granted to You by this License upon Your failure to honor the proviso in Section 1(c) herein. I copied the idea for this provision from the GPL. To the extent that a putative licensee in breach of contract argues that he didn't accept the license and so is not bound by it, the OSL reminds him that copyright law prevails in such situations. Such a bad actor can't have his cake and eat it too. One way or another he'll answer to the laws of contract or the laws of copyright. But because the OSL is unabashedly a contract, and where contract formation can be proven -- as where click-wrap and other technical means are used to manifest assent expressly and volitionally -- contract law gives the Licensor better ways to enforce the License agsinst his licensees. A click-wrap or other contract formation procedure is not expressly required by the OSL, but a Licensor who uses some technical procedure to obtain clear manifestation of assent from his licensees gets to sue them for breach of contract. This provision in the OSL also announces that dual licensing is always an option of the Licensor. It is very difficult under the OSL for a licensee to argue lack of notice about the License. The OSL requires the Licensor to put the following notice immediately after the copyright notice that appears on the Original Work: Licensed under the Open Software License version 1.1 The latest DRAFT of the OSL is at www.rosenlaw.com/osl1.1.html. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3