RE: Open Source Click-Wrap Notice
'Forrest J. Cavalier III' wrote: > How do you form a contract without presenting the terms? Is there a > way to review the terms without clicking? Is such vague > language sufficient to incorporate all the terms (of those > possibly 800 > licenses) by reference? Seems against common sense to me. > > Further, any consciencious, thinking user would never click > to agree to something like that. I know I wouldn't. It is > just too unpalatable. > > I would want to agree individually, not in bulk. Good, common sense. That is why I suggested in the notice that you there be a simple procedure to review all the licenses. This is also a good place for the OSI Certified certification mark. If it is applied to the entire distribution, it is another notice to you that all software in the distribution is licensed under one or more OSI-approved licenses. For many of us, that may be all we need to know without reviewing each license in detail. We will click on "I AGREE" knowing that we are agreeing to something reasonable. But we will still "AGREE!" /Larry -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Open Source Click-Wrap Notice
> "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 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Open Source Click-Wrap Notice
"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. 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. Carol -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Open Source Click-Wrap Notice
[EMAIL PROTECTED] wrote, in part: > Your answer added nothing to the discussion. Please give some legal > argument why a single click-wrap won't bind the licensee to all relevant > licenses. How do you form a contract without presenting the terms? Is there a way to review the terms without clicking? Is such vague language sufficient to incorporate all the terms (of those possibly 800 licenses) by reference? Seems against common sense to me. Further, any consciencious, thinking user would never click to agree to something like that. I know I wouldn't. It is just too unpalatable. I would want to agree individually, not in bulk. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Alternative to click wrap license
Mahesh T Pai <[EMAIL PROTECTED]> writes: > We also want to reduce the threat of users suing us. Therefore, click > wrap is about product liability. When we tell the courts that we are > not liable because we have a contract to which the plaintiff has > assented to, according to which we are not liable, the courts will also > ask for proof that the user accepted those terms. He cannot accept > those terms unless he was told of them. Can he? This is where click > wrap comes in. CW has nothing to do with copyright/left. > > And therefore, neither the "replacement dialog" suggested by you, nor > the "click wrap notice" suggested by Mr Rosen earlier on this list would > be of any help to disclaim product liability. I see. Well, then I don't know a suggestion (other than that I hope the open source initiative would choose to discuss this with the FSF or Debian before making a decision), so I'll stay out of this. Thanks for reading. > Regarding protection of the programmers' copyrights, unless the user > accepts the license, he (the user) cannot distribute the software, anyway. That's what I said. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Open Source Click-Wrap Notice
Your answer added nothing to the discussion. Please give some legal argument why a single click-wrap won't bind the licensee to all relevant licenses. Quoting from my words is not a reason. If you think different words would work better, please suggest them. /Larry > -Original Message- > From: Mahesh T Pai [mailto:[EMAIL PROTECTED]] > Sent: Saturday, August 10, 2002 6:13 AM > To: [EMAIL PROTECTED] > Subject: Re: Open Source Click-Wrap Notice > > > Lawrence E. Rosen wrote: > > >>Mahesh T. Pai wrote: > >>Here, we are presented with a case where one click is intended to > >>indicate assent to license A, B, C, D, E, (ad > infinitum; minimum > >>800 as in a linux distro). No, the click wrap notice will > not hold in > >>a court of law. > >> > >> > > > >Want to bet? Whose money are you betting with? > > > >/Larry > > > > > I will quote from the suggested Open Source Click Wrap Notice:- > > a) "(Y)our acceptance of the software programs included on > this distribution under the terms and conditions of the > licenses applicable to each of them." > b) "You understand and agree > that the installation, use, copying, modification, and > distribution of this software may be prohibited by law unless > you agree to the applicable licenses." > c) "You acknowledge that some or all of this software..." > d) "The name of each software program on this distribution > and its applicable license is listed on the file LICENSE.TXT > included with this distribution[, which you can read by > clicking on "REVIEW THE LICENSES" below]." > > The issue is not whether a click wrap license will be binding > or not, (it is) but whether the Open Source Click Wrap Notice > will bind the user to the several > *other* licenses applicable to each package. (it will not). > > Mahesh T Pai. > > > > > > __ > __ > Want to sell your car? advertise on Yahoo Autos Classifieds. > It's Free!! >visit http://in.autos.yahoo.com > > -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Open Source Click-Wrap Notice
Lawrence E. Rosen wrote: >>Mahesh T. Pai wrote: >>Here, we are presented with a case where one click is >>intended to indicate assent to license A, B, C, D, E, >>(ad infinitum; minimum 800 as in a linux distro). No, the >>click wrap notice will not hold in a court of law. >> >> > >Want to bet? Whose money are you betting with? > >/Larry > I will quote from the suggested Open Source Click Wrap Notice:- a) "(Y)our acceptance of the software programs included on this distribution under the terms and conditions of the licenses applicable to each of them." b) "You understand and agree that the installation, use, copying, modification, and distribution of this software may be prohibited by law unless you agree to the applicable licenses." c) "You acknowledge that some or all of this software..." d) "The name of each software program on this distribution and its applicable license is listed on the file LICENSE.TXT included with this distribution[, which you can read by clicking on "REVIEW THE LICENSES" below]." The issue is not whether a click wrap license will be binding or not, (it is) but whether the Open Source Click Wrap Notice will bind the user to the several *other* licenses applicable to each package. (it will not). Mahesh T Pai. Want to sell your car? advertise on Yahoo Autos Classifieds. It's Free!! visit http://in.autos.yahoo.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Alternative to click wrap license
Sunnanvind Fenderson wrote: >If users disagree with the copyright license they must refrain from >distributing the program - lest they are in violation of copyright >law. > >This is being disputed in some courts, accepted in some. It's unclear >what law it uses. Contract law? Can I say "By reading this sentence, >you agree to obey me"? To what extent are clickwraps valid? > >Clickwraps were introduced because those companies wanted to place >restrictions on the use of the program, with an EULA. > >With free, open source software, we want to *reduce* restrictions. > > We also want to reduce the threat of users suing us. Therefore, click wrap is about product liability. When we tell the courts that we are not liable because we have a contract to which the plaintiff has assented to, according to which we are not liable, the courts will also ask for proof that the user accepted those terms. He cannot accept those terms unless he was told of them. Can he? This is where click wrap comes in. CW has nothing to do with copyright/left. And therefore, neither the "replacement dialog" suggested by you, nor the "click wrap notice" suggested by Mr Rosen earlier on this list would be of any help to disclaim product liability. Regarding protection of the programmers' copyrights, unless the user accepts the license, he (the user) cannot distribute the software, anyway. Mahesh T Pai Want to sell your car? advertise on Yahoo Autos Classifieds. It's Free!! visit http://in.autos.yahoo.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Open Source Click-Wrap Notice
"Forrest J. Cavalier III" wrote: > You can't run most source code. You must compile it, which is > preparing a derivative work. Not quite... "[T]he U.S. Copyright Office has traditionally taken the view that object code is not a derivative work of source code. Instead, the Copyright Officers consider the source code of a piece of software and the corresponding object code as the same literary work." [1] For the full explanation read paragraph 32 through 34 in [1]. [1] Mathias Strasser "A New Paradigm in Intellectual Property Law? The Case Against Open Sources" http://stlr.stanford.edu/STLR/Article/01_STLR_4 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
