Click-Thru Licensing on Open Source Software? 520
Russ Nelson writes "At the July OSI board meeting last week, we approved the Academic Free License (think MIT/BSD/X11/Apache with a patent grant) and we sent four licenses back for reconsideration. Here's the hitch: we were asked to approve a license which includes a requirement for click-wrap. Read more to see why we're asking you about it.
The submittor had already been asked if that requirement was a necessity. She said yes, because of various legal precedents. We consulted a few people and yes, it looks like a license without click-wrap is weaker at protecting your rights. So, folks, the lawyers are coming. The time is coming when you won't be able to distribute software unless you have presented the license to the user and their assent is necessary to access the software. Even free software. Our industry is maturing and we need to be more legally careful and rigorous.
The question here is whether we should amend the Open Source Definition so that it is clear whether click-wrap licenses are allowable or not. We could go either way, but we want to hear from you first. Your opinions solicited, and engaged!" While I can understand some legal necessities are necessary in the software world, click-thru licenses have never, and will never, make sense to me. Maybe commercial software has soured me on the concept, but I dislike agreeing to something before I even get a chance to use it.
so what about non-gui's? (Score:3, Insightful)
I think this is a very silly idea. If the software is commercial and is a large application as well, I can understand that being there. But, mandating such a rule, and making it across the board (not case-by-case) is unthinkable.
Re:so what about non-gui's? (Score:2)
Re:so what about non-gui's? (Score:5, Insightful)
The OSI board doesn't force anyone to use a particular approved license on any given program. What they want to know is should they approved any license that requires assent before installing the associated program.
In my mind this doesn't violate any of the other requirements of the Open Source Definition so I think it really matters more what is in the license than how it is presented. The questioner seems to be acknowledged the fact that the receiving party has to agree to the license for it to be valid, so I don't really understand the problem. The GPL (and any other open source license) can be violated just like commercial licenses. Instead of assuming the user agrees to the license make them say so if you want the extra legal protection. You might need it if you wind up in court.
Re:so what about non-gui's? (Score:2, Insightful)
You can edit the licensing in a GUI app using a hex editor.
Use your head.
Hack (Score:2)
I had to do this with one microsoft program, because the installer would not work...
am i breaking the licence or outside it?
probably techincally (Score:2)
click-wrap limit (Score:2, Informative)
Most of the commercial click-wrap licenses are so long and tediously legal, that one cannot possibly wade through (and understand!) the license before an updated version of the software is released.
Do I license my TV? phone? food? (Score:2, Interesting)
Re:Do I license my TV? phone? food? (Score:2)
Just a Case of CYA (Score:4, Insightful)
We've ratcheted down another couple of notches into the corporatization of everyday life.
Jim Slattery
Network Guy (MCSE)
Thousands of candles can be lighted from a single candle, and the life of the candle will not be shortened. Happiness never decreases by being shared.
- Buddha
This is nuts (Score:3, Insightful)
So taking advantage of those terms (creating derived works, redistributing, blah blah woof woof) indicates implied assent of the terms.
Besides, the only time licenses have been held not legally binding have been when the software has been sold -- most free software is not sold, it is downloaded. Free Software vendors should be indicating the terms of the GPL (assuming some software is GPLed in their distribution) on the outside of the packaging, but even if they don't, again, the license is not restricting any of the rights you would normally have in a software sale so there is no need for prior assent.
This is all crap until the courts rule on the applicability of licenses like this anyway. Free software licenses do not fall under the same category as normal closed licenses.
Re:This is nuts (Score:2)
What if you are evaluating a software package based on the ability to redistribute it or reuse parts of it? Prior assent is essential no matter the license, because even the GPL restricts some rights as a compromise for allowing others.
Re:This is nuts (Score:4, Insightful)
dbt: Free Software vendors should be indicating the terms of the GPL (assuming some software is GPLed in their distribution) on the outside of the packaging, but even if they don't, again, the license is not restricting any of the rights you would normally have in a software sale so there is no need for prior assent.
pmz: What if you are evaluating a software package based on the ability to redistribute it or reuse parts of it? Prior assent is essential no matter the license, because even the GPL restricts some rights as a compromise for allowing others.
The GPL does not restrict any rights you, as a recipient of a copywritten work, already have. It does place requirements on you if you choose to exercise the rights of redistribution, modification, or creating derived works -- but those are rights that you do not have except as granted by the license, so the default assumption is that you cannot copy, redistribute, etc.
Re:This is nuts (Score:3, Informative)
That's not necessarily true. It probably is, but not necessarily.
The current legal standard in the US derives from Bell v. Combined Registry Co. In that case, the court upheld that the criteria for copyright abandonment is a statement of the intent to abandon (which in 1976 included omitting a copyright notice; this is no longer sufficient) and a clear intent to waive copyright. In other words, you have to both say that you're waiving it, and you have to distribute it to somebody under those terms.
So putting the BSD license, which effectively waives your copyright, and distributing the source may be sufficient to indicate an intent on your part to waive your copyright. Even if the license itself is flawed, your copyright has already been waived.
This isn't the case if you're a minor, or if you don't have clear claim to the rights over the source. In other words, if you don't have the copyright, you can't waive the copyright.
what about server software (Score:4, Interesting)
RPM ?
Or updated using RPM?
Or worse, installed using OS installer?
I will sit and click through about 600 EULA-s?
Even through GNU EULA-s?
Re:what about server software (Score:4, Funny)
Please refer to these agreements by a name which respects the hard work and tireless efforts of the FSF. They should properly be called GNU/EULA, also abbreviated GNULA.
Re:what about server software (Score:2)
Re:what about server software (Score:2)
it is my understanding that most if not all
software in commercial distributions lie under a
GPL license.
You do not understand correctly.
You should be able to agree to GPL once to cover
all the GPL software about to be installed.
You do not need to agree to the GPL at all to install GPLd software.
Software licenses make no sense (Score:2, Insightful)
Copyright (and patent) laws already protect "your rights". If something is not listed in either of those, then they are not "your rights" and you are not entitled to them. Why is any license necessary?
There's a difference with the GPL etc., which are not EULAs but rather distrubution agreements that give the user rights, not take them away. No click-thru is needed for those because nothing else would give the user the right to distribute copyrighted software.
Click thru? whatever (Score:2)
And I don't believe the BSD or GNU licenses do that. As for the rest, well thats another story.
Perhaps.... (Score:2, Interesting)
Re:Perhaps.... (Score:2)
If the FBI can hunt down CEO's & CFO's for stock fraud, why can't we get them (and their lawyers) on the hot seat for conspiracy against the consumer at large?
Because stock fraud (and the like) kill stock prices. Stockholders care about stock prices, not the consumer.
Massive Overhaul? (Score:4, Insightful)
My personal favorite would be to build a system like Gentoo. It already takes forever to compile the software. But then to wait for the user to interact with each piece as it installs?
Ridiculous. I agree that the Open Source software industry is evolving but I never saw it going in the direction of a massive beuracracy. One of the beautiful things about this software is that it can avoid all of that crap. The industry can turn on a dime. Would it be able to with a requirement like this?
Re:Massive Overhaul? (Score:2)
Please read through the following license agreement:
Pages of boring and dry text
Do you agree (y/N):
You already have to do this with the Sun Java runtime [sun.com] for Linux, which is distributed in a "self extracting TAR ball" - read "sh script which pipes most of its contents to gzip and then tar after displaying the license with less or, failing that, more, and then asking the user to enter a 'y' character is signify agreement." You can also get a "self extracting RPM" which is in essence the same thing, but instead of producing a TAR ball it produces an RPM.
So yeah, it's doable - it may not be very NICE, but it's doable...
Besides, with large software packages that share the same license (be it GPL or random proprietary) you just need to accept one copy of it before installing. That's how you can get away with "accepting" the license agreements packed in with most MS updates - a license is displayed that covers all the individual "components."
I'm not going to say that I enjoy click through licensing, just that it is possible in console mode and with software applications. I'm not going to try and draw any conclusions on its use or the need for it - just demonstrate how others have solved the problem.
Copyright law protects you even without click-wrap (Score:5, Informative)
Have your lawyers read Eben Moglen on enforcing the GPL [gnu.org].
That's not the issue! (Score:4, Informative)
Re:That's not the issue! (Score:2)
Re:That's not the issue! (Score:4, Insightful)
That said, I still don't recommend click-through. I would instead publish a set of guidelines for distributions that would tell them how to direct attention to individual software licenses.
Bruce
Re:That's not the issue! (Score:3, Insightful)
Bruce
Re:That's not the issue! (Score:2)
If it extremely hypocrite that users would accept this for software. Would we accept it when Ford would make you waive all their liability as a requirement to purchase their cars? Are they even legally allowed to do so?
If you do not want to be responsible, do not distribute. And don't come with "but with open source end users have the ability to check this". With sufficient skills (and time, I bet) you could examine your car as well.
You are not liable when the damage is out of your control anyway but when it is, you should be liable. In all cases.
But if it is legal to waiver liability, then sure. This should preferably be enforced before distribution like in my Ford example though, not any later. If someone redistributes it, they should waiver liability pre-distribution as well. Or else *they* would be liable.
To have any kind of legal defensive as to why you are not liable, you'll need to have evidence that the user waived it anyway. If you allow for any method where the user can use your product without accepting, then that is a flaw of yours and you should still be liable.
Shrink-wrap is also not legally enforcable: you can easily tear it without having read (and thus being able to have accepted) the license.
Not liable? Prove it.
Re:That's not the issue! (Score:5, Insightful)
Obviously, Free Software producers must be able to deny warranties, since they are not getting the consideration (money) necessary to provide them. People who want warranties should be able to buy them, either from the software producer, another software shop, or an insurance company.
It's different with cars, because cars have a high potential to do physical injury to people and are thus expected to be built to a higher standard.
Bruce
Re:That's not the issue! (Score:4, Insightful)
Bruce
Copyright and License (Score:2)
The problem is that many rightholders wish to further restrict these rights, and to do so must present you with a license that you must accept. Without acceptance of the license, their restrictions fall to dust.
Should clickwrap be used in Open Source? The purpose of these licenses is to defend the freedoms that come with copyright and then to extend them to allow users to share their derivative works with others. Using clickwrap gives the impression that you no longer accept the allowances given by US and international copyright law, even if it is not the case. This is an impression that I believe we should avoid at any cost.
(Of course, if the intent is to restrict these rights, then the clickwrap is necessary - but why grant the name Open Source to something that does?)
Can't Click through (Score:2)
that by nature are not clickable.
A requirement for clickthough is going to destroy many forms of GPL'd non desktop software.
Clickthrough also assumes a mouse and keyboard, or some other input device... and an output or display.
There may be none.
Legal advisors are wrong about enforcement, somebody needs to introduce them to technology, not PC's.
don't approve it. (Score:2)
Here's the problem, by introducing a click-wrap license, you actually weaken your license. The reason is that you introduce a fail-point. If the user never clicks through, does the license still apply to him? Any lawyer could sucessfully argue otherwise.
Now imagine how this would work for opensource. The program, and all of it's derivatives, could not possibly be provided in a tarball. Because untarring the tarball gives you access to the source without having to agree to their license. So the source will always have to be provided in a self-running executable.
It just doesn't work.
I'm suspicious of this... (Score:4, Insightful)
How do you verify that I have indeed clicked-through the wrapper? I've oft seen people on
In short, how do you have a legally binding contract in the absence of a bidirectional communication that "... the party of the first part, being legally able to enter into a contract and freely entering into the contract, and the party of the second part, being legally able..." zzzzzzzz-snork! (Sorry, nodded off there...)
I question whether click-wrap really improves the strength of the contract or not. I'd like to hear from a professional on this matter, however (Dr. Hawk? You reading this?)
Re:I'm suspicious of this... (Score:2)
When you mix source code? (Score:2)
Also, it is clear that any license that *requires* a click-through would be GPL-incompatible for obvious reasons (GPL forbids adding any restriction). That being said, nothing prevents me from taking a GPL program and adding a click-through license to it, as long as others are free to remove it from the source... For example, I could distribute a GPL binary and add an EULA that says: "if you use this binary, you accept not to sue me..."...
No. (Score:2)
If the mere availability of code would be sufficient to be OSI approved, shared source would be too?
Don't do this.
Re:No. (Score:2)
The clickwrap license restricts you only from using that copy; it doesn't restrict you from using any copy that doesn't include the clickwrap. Anyone who wants to bypass the clickwrap license does so by modifying the software to remove the clickwrap code and "redistributing" it to him/herself.
Sounds perfect... except for the entity hoping to be protected by the clickwrap license. Big headache.
Lawyers? Comments?
No. (Score:3, Insightful)
Bruce
Re:No. (Score:5, Insightful)
But this goes beyond copyright... (Score:3, Insightful)
What does this have to do with software? Well, a cheap lawyer will tell you this:
Software is covered under copyright, and copyright grants your work protection by default. We don't need a shrinkwrap on a book to note that copying it is illegal; the same should remain true of software.
An expensive lawyer will laugh at that response and will tell you that you need to set up every possible legal defense if you don't want to get sued for millions of dollars. And the best line of defense: be the first to state the rules of the game. If the other team has to play by your rules, you have much better odds of winning.
So, when it comes to software, be it commercial or open source, it's always safer for the publisher to present the license (which goes far beyond the limits of ordinary copyright), because it gives them the advantage in court. Whether or not the license is legal under Copyright Law doesn't matter, because (the other thing I learned in Econ) the first line of defense in court is not the law, it is FUD. If you have the more expensive lawyer, the bigger contract, and the Italian-quality suits, you stand a better chance at frightening the other party into submission.
Re:But this goes beyond copyright... (Score:4, Insightful)
This is not to say that there is no need for a set of guidelines on how to communicate to users the NO WARRANTIES message. But I don't feel that requiring click-through in licenses is the right approach.
Bruce
Re:No. (Score:2)
I too would like to see the arguments, maybe OpenLaw would like to review them to see what they think? Or maybe the EFF's lawyers?
But I think it's important not to dismiss them out of hand. The Law is a tenuous thing at best, full of opinion as well as fact. We need to see them and remember that just because whoever we consult sees the arguments as weak doesn't mean some judge somewhere won't find them compelling.
Free Software (and GNU and BSD, etc) have millions of lines of code to protect. Even if something is a long shot (legally) shouldn't we make sure we are protected against it? We have an awful lot of good work to lose that cannot easily be replaced.
Re:No. (Score:3, Insightful)
Bruce
Re:No. (Score:2)
Not only do I want to see the arguments, I want to see them debated openly, in detail, over a period of time. I'm extremely leary in light of the history of Western Civilization's legal systems' proclivity towards "embrace and extinguish" when it comes to freedoms: Wrap up the target in some seriously mangled language and then twist and turn (via precedent) until the target is dead.
Isn't that how snakes do it?
Re:No. (Score:3, Interesting)
You know what would protect us? Properly written law. Like if we could get the right text into UCITA instead of the wrong text that is there. I am not optimistic.
Bruce
Users rarely see clickwrap anyway (Score:2)
I do think that the validity of a clickwrap license is highly questionable because the user would under normal circumstances be unlikely to see it. Most people get PCs pre-configured at work or by a technician, and it's the technicians that are just clicking "OK" to the terms of the EULA, and I presume that the vast majority of technicians don't bother to read the EULA anyway.
Perhaps it could be argued from a legal perspective that the technician was acting on behalf of the real end-user/purchaser, but legalisms aside, it doesn't make much sense.
package-1.0/LICENSE or clickthru, what's the diff? (Score:3, Informative)
What is the purpose to making sure people have agreed to these additional rights? It's nice to let them know as a favor, I suppose... Mozilla shows the license during install.
But if they don't agree to the "Open Source" terms, they are left with normal fair-use rights to the software, which, for an open source program, SHOULD BE PERFECTLY FINE. There is nothing we have to take away, so no need to force agreement to the terms. In fact, the GPL says as much. You can still use the application without accepting the GPL, you just can't modify it (due to copyright law).
I can't think of a license under the Open Source terms that takes away rights, therefor I oppose the requirement of such click-thru license agreements.
Re:package-1.0/LICENSE or clickthru, what's the di (Score:2)
There are two orthogonal things going on here:
The ability to use a product you *purchased* regardless of the license on it.
The ability of an agreed-to license giving you extra rights.
We would like to have both in effect (being able to use proprietary software without agreeing to some draconian privacy-invading license, and being able to hold up the legal strength of the GPL). Somewhere between the two there seems to be a hole by exploiting one (use of licensed software) and relinquishing the other (extra rights granted by license).
No Your Honor... (Score:3, Funny)
Re:No Your Honor... (Score:2)
Damnit, if you want to restrict what stores send you for credit have them rip the last couple of text pages from a book and send those back!
Covers get ripped all the time, there are a large number of used books without covers, mostly because they got torn at some point in the past. Not because the book was 'stolen'.
But that is why they have the policy they have.
Just say no (Score:2)
There should be no click-through licenses, even if only to protest their validity. A contract that you have no chance to negotiate about *should not* be valid.
The software industry needs to get over the fact that it is not going to be able to avoid being liable for it's products, especially when they're making billions of dollars of *profit*.
The whole concept of licensing the software is also pretty foreign, not only for me but also to the common public. I bought the software I should be able to use it any way I want. The whole shenanigans with OEM licensing, corporate licensing, etc is just ridiculous. I'm surprised (a little) that someone hasn't taken it to court yet. Especially for corporations, where they can show that they order 12000 machines with Windows 2000, but for their purposes they need to roll out with a corporate key to meet their standards. This should not require them to purchase another 12,000 licenses... but that is the situation today.
Hrm....Unlicensed Demo? (Score:3, Insightful)
Software, however, comes with no such luck. You can't try it out at the shop (Apple Store excluded). You can't open it, discover it's shit (*cough* daikatana *cough* *cough* windows xp), and return it. You are required to guess whether you need it, shell out $50-$400 for it, and sign away your rights to share it, sell it, fix it, critize it and in some cases, even use it for its intended purpose, as well as the company's liabilities for their own mistakes.
Can you imagine buying a hammer and having to sign a form saying you won't use it to hammer anything unapproved by Stanley tools?
Not that you'd be buying Stanley tools, what with their moving all their plants to China and Israel and their corp office to Bermuda to avoid taxes, unamerican shitheads.
We should take a stand..... (Score:2, Redundant)
I'm one of those people who believe that when I purchase a product at a store, and take it home it is mine. At that point, I can do whatever I want with it, including resell it to someone else. We should all stand up and say "ENOUGH!"
Contracts are something like the purchase of a house where we all sit down at a lawyer's office and go through the contract page by page, deciding whether or not we agree to it. A contract is NOT something that requires only that I click a button saying that I agree in order to use a product I BOUGHT!
If enough people stand up against these restrictive licenses and insist that these products have been purchased, not simply licensed, maybe we can recover some of the FREEDOMS these licenses steal from us. These works are protected by a very producer favorable copyright, they don't need anything more.
And, if Open Source bows to this, I will no longer have respect for Open Source.
Couple of questions... (Score:2)
For example, I have FrontPage 98 installed on a computer (no I don't but it's the only example I could think of), I install the latest version of FrontPage that states that I can not use FrontPage to disparage Microsoft. If I uninstall the latest version and revert back to FP 98, am I free to use FrontPage to insult Microsoft again?
When do I click "I agree" when I compile a piece of software. Since the GPL primarily seems to apply to source code (Correct me if I'm wrong about my assumptions regarding the GPL being mainly a source-code license.), what license would I be agreeing to if I install Apache and click "I agree".
Second, has there ever been a recorded case where someone disagreed with the license (I mean actual trial and/or litigation) and the fact that they clicked "I agree" was a factor? Are we really just making more lawyers rich?
Have there been any license disputes? At least from the end-user perspective, I know there have been some regarding the GPL and derived works.
Re:Couple of questions... (Score:2)
It's Stupid, It's Idiotic...but we need to do it (Score:3, Interesting)
Look, the damned lawyers are hauling us up by
our short hairs, we're being eaten alive by a
huge raftload of bad law aided and abetted by
Microsoft and others. There is no longer any
question that we need protection.
It doesn't need to be elaborate. A
file would contain a list of booleans for every
approved open-source license. When an app starts
up it merely calls a library function that checks
to see if that file has the boolean checked and
if it does not, prompts the user by command-line
or dialog box to set it. The OSI licenses them-
selves should be modified to note that OSI soft-
ware will not run without the boolean being set,
and therefore the fact that the software runs is
evidence of user acceptance of the license,
regardless of how the boolean came to be set, by
dialog or user editing.
Distros would, of course, simply combine the
above into part of the install "Do you accede
to the requirements of the following OSI
licenses?" and sets the file up with all booleans
checked. Viola, no more hassle.
Assent is the issue (Score:2)
In the case of the most basic open source software, though, no license is really required. The author(s) retain copyright and simply choose to distribute the source along with (or even in place of) object code. It's only the perverse history of the last 25 years that leads us to think that an author gives up rights if he doesn't keep source code under lock and key.
Assume, then, that there are additional terms (again, see the GPL). The question is whether these additional terms are such that failure to execute a contract would vitiate them. In the case of the GPL, I don't see how that could be; perhaps someone could explain.
As for click-wrap, this implies some degree of license administration. All in all, it's probably much easier to simply keep a registration database of those who agree to the terms in return for redistribution or derivative-works rights.
Give me a BSD/GPL/MIT program with clickthrough.. (Score:3, Insightful)
Seriously, if a new license springs up requiring a click through, that could work on a desktop, but what about when I rip out the program's optimised hashtable implementation for use in an embedded controller? How is a clickthrough supposed to work then?
If a new input paradigm springs up for desktops, will code licensed under explicit clickthrough terms that aren't satisfied by it be left to rot?
If you're that afraid of people using your stuff, and you don't feel that copyright gives you adequate protection, then you probably shouldn't open the code.
encompassing license (Score:2)
Which in the case of Debian essentially means, "you agree to the GPL/LGPL license that applies to all our non-non-free software". An interesting precedent.
The GPL doesn'[t need a click-through agreement (Score:5, Informative)
Read the article by Eben Moglen [gnu.org], the lawyer who, for the Free Software Foundation, actually enforces the GPL.
This claim is based on a misunderstanding. The license does not require anyone to accept it in order to acquire, install, use, inspect, or even experimentally modify GPL'd software. All of those activities are either forbidden or controlled by proprietary software firms, so they require you to accept a license, including contractual provisions outside the reach of copyright, before you can use their works. The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL'd software from day to day needs no license, and accepts none. The GPL only obliges you if you distribute software made from GPL'd code, and only needs to be accepted when redistribution occurs. And because no one can ever redistribute without a license, we can safely presume that anyone redistributing GPL'd software intended to accept the GPL. After all, the GPL requires each copy of covered software to include the license text, so everyone is fully informed.
Re:The GPL doesn'[t need a click-through agreement (Score:4, Insightful)
I see this as a slippery slope. Accept it, and then there will be an incremental series of other "legaly necessary" requirements, until we can't be distinguished from shared source.
No, no, a thousand times no!
Bruce
Copyright vs. Warranty (Score:4, Insightful)
First, it's necessary for you to divorce copyright from warranty in your mind. Warranty does not necessarily follow copyright. In many cases, the warrantor will be the person you got the software from, regardless of whether they hold a copyright. And they may be able to pass on damages to the person they got the software from, perhaps the original developer. I think the risk to FTP sites is low, but to distributions, who put more active work into the process, and sometimes get a cash consideration, it's high.
The problem is what is the default in the law regarding warranties. If the default were clearly no warranty, Free Software would be OK. To the extent that the default is otherwise, we are less OK, and must deal with imperfect instruments for disclaiming warranties, and getting the user to agree to indemnify us (pay for our damages). But our goal is not to go to court at all. The minute someone has us in court, we're already losing money. So, we want it to be so clear that there is no warranty that nobody will ever try to sue. This is why people are tempted to use click-wrap. But I don't think that requiring it is the right solution.
Bruce
Re:The GPL doesn'[t need a click-through agreement (Score:2)
Free software licenses (Score:4, Interesting)
Fundamentally under copyright law, you have virtual no rights except that you can use the software. I refer to section 5 of the GPL:
5. You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify or
distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License. Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it.
Click-wrap licenses should only be necessary if the licenses restricts the *use* of the program.
Tks,
Jeff Bailey
If it quacks like a contract... (Score:3, Insightful)
Oh right, because that would mean that people would be paranoid out of their minds whenever they went to buy software. Not to mention that no one under age 18 would be able to buy software (or use it, for that matter). No, software giants WANT the click through license to be as easy and brainless as possible, so people don't realize just how much they're getting screwed. Plus, they don't want the idea of click-through to get too much legal scrutiny, since it would probably be ruled unenforcable. No, they're just interested in the fear factor they get from being able to say "Hey, you clicked to agree that you wouldn't do that! Don't make us come after you!"
Speaking of precedent... (Score:2)
Seems to me software is the only thing ridiculous enough to have you agree to all the terms and conditions before you even install the thing, much less run it and see if it even serves you well.
Where's the license? (Score:5, Interesting)
A requirement imposed on whom, to do what?
What precedents? Whom did you consult? Whose rights? What's the argument?
What kind of FUD is this? Are you telling us it's a forgone conclusion that you will accept this license? Are you telling us that the FSF (which defines "free software") will accept this license? Are they and other free software distributers going to change their licenses to require click-through?
Come on, Russ. Give us the facts, straight, so we have some basis for discussion.
Re:Where's the license? (Score:3, Interesting)
Bruce
Re:Where's the license? (Score:3, Interesting)
"An open source license cannot restrict any rights that would be available for a copyrighted work in the absence of a license."
Fair use is something else entirely.
non-sequitur confusion (Score:2)
This confuses me. I have never had to agree to a license to use the fruits of much more mature industries. For instance, has anyone ever made you read a license after purchasing a new car, or crossing a bridge, or entering a building, or...
We apologise. The remainder of this thought has been interrupted by the cacophony of a million laywers simultaneously drooling.
Not needed for (most) OSS licenses (Score:3, Interesting)
You can read http://www.gnu.org/philosophy/enforcing-gpl.html for an explanation of why, from perhaps the world's foremost authority on the subject, FSF lawyer Eben Moglen. But by way of an executive summary:
This is there actually is a fundamental difference between OSS (or at least Free Software) licenses and proprietary ones. By default (in the US) you have no rights to do anything with the software, even run it. Proprietary software licenses offer you a deal whereby you are allowed to run the software, in exchange for agreeing not to do other things that you are typically legally allowed to do. So they give up rights, and you give up rights. But its tough to make a case (in court) that you agreed to give up those rights, if there is no proof that you ever even saw the agreement. That's where click-through comes in.
With a Free Software license, you are only given rights; none are taken away. You might not be able to do some things (like sell it to someone else with a different license), but you aren't allowed to do that stuff by default either. If you break this license, there is no question that you violated copyright law, whether you agreed to the license or not.
So unless they had something in that license that says the user agrees not to do XYZ, which they normally would have the legal right to do without the license, then click-through is completely unnessecary.
Note: IANAL. This comes from extensive reading of GPL materials, writings of IP lawyers like Eben Moglen, and discussions with folks who have actually been in court on IP cases. For advice on a specific situation, contact a good IP lawyer. For everyone else, I highly encourage reading http://www.gnu.org/philosophy/enforcing-gpl.html , which covers this in a bit of detail.
makes little sense to require "click-through" for (Score:2)
So for a huge fraction of "open source" software (that which is actually Free software, under the GPL), a click-through requirement prior to using the software makes no sense.
It's time for OSI to return the OSD to SPI (Score:5, Interesting)
The OSD was developed by the Debian group under the aegis of Software in the Public Interest. Nobody who is presently involved with OSI had any part of that.
OSI is probably the biggest mistake I've ever made, and yes it's my mistake. It's time to clean it up. The OSD should be returned to SPI, who can be trusted to administer it sanely.
Bruce
Re:It's time for OSI to return the OSD to SPI (Score:3, Interesting)
They've had a request for approval of a licence. Is it not reasonable for them to consult the wider community on this issue?
OSI is probably the biggest mistake I've ever made, and yes it's my mistake. It's time to clean it up. The OSD should be returned to SPI, who can be trusted to administer it sanely.
I'm intrigued by this statement. Some time ago I compared briefly read the Debian Social Contract and the OSD and I didn't notice any substantive differences.
Would you care to elaborate on what you think is wrong with the OSI and why you think that (co?)founding the OSI was a mistake? I'm not trying to defend the OSI here; I no next to nothing about both the OSI and SPI, I'm just trying to understand the issues.
Re:It's time for OSI to return the OSD to SPI (Score:5, Insightful)
Do you really believe they even had to ask? This one seems pretty clear to me.
I'm intrigued by this statement. Some time ago I compared briefly read the Debian Social Contract and the OSD and I didn't notice any substantive differences.
When OSI was proposed to me, it was a way of marketing Free Software to business. It's been instead driven as a schism from Free Software. And the OSD continues to diverge from the DFSG. I also reject that the folks running OSI are representative of any Open Source community anywhere. In the case of SPI, there is a membership and elections. And unfortunately, most of the OSI board don't have time for OSI - they're too busy with their companies, etc. So 2 or 3 people end up running it.
The whole thing makes me very uncomfortable.
Bruce
You Only Need Assent to Take, Not to Give (Score:2)
the time is coming when you won't be able to
distribute software unless you have presented
the license to the user and their assent is
necessary to access the software. Even free
software.
Nonsense. Prior assent is only needed when the license requires the user to give up rights she would have were there no license at all. No Free Software license does this.
You also make it sound like I would be forbidden to distribute software without a "click-through". In fact, the worst that could happen is that some license provisions might not be enforceable without prior assent. I can think of no such provisions that I would want to enforce anyway.
Hey, I have an idea. (Score:2)
*evil smile*
C//
regulation is a good thing (Score:2)
The meat industry can't sell you rotten steak.
You can't be made to sit on a rotten board on top of a light tree at the local ballpark.
So why doesn't software have regulations that it can't destroy your machine? You may not own the software, but you damn sure own the parts of the computer.
If this were regulated then click-through licensing would be a non-issue, as it really would be about terms of use and not simply a deathgrip.
Y'all realize how the system works, right? (Score:2)
Now, giving consideration to human nature, what do you expect that same lawyer to suggest when you ask whether or not you should have a click-through agreement?
In fact, I would even suggest that is the main reason for click-through agreements on most commercial software, which is already adequately protected by copyright. The lawyers who tell you whether you need a click-through don't make as much money when you don't need one. (As well as the natural herd tendency that keeps businesses from standing out from the crowd.)
Most companies have the same problem with the legal department of a company as they have with the engineering and other technical departments. Mangement does not understand them: "Oh, you need a GeForce 4 for every computer to run MS VC
Legal issues. (Score:2)
None of this part of open source needs to be addressed in a clickwrap license. What MIGHT need to be addressed are the warranty issues and issues of financial responsibility, should the software be in some way responsible for damage. While with open source, this is probably less likely than proprietary counterparts, its still a potential legal problem waiting to happen.
But as far as the issues of copyright, and how the software is used, open source software doesn't adhere to restrict the user in these regards, and wouldn't need a clickwrap to specify it.
-Restil
Not in Debian (Score:2)
Open Source Definition so that it is clear
whether click-wrap licenses are allowable or not.
I strongly doubt that any software laboring under such a license will ever be part of Debian.
maturing??? (Score:2)
I would hardly call this mature.
Where should the click-through be? (Score:2)
For that matter isn't it adaquate to have a file called COPYING included with the source that contains the License aggreement as well as compile it into the app so that the user can display it with --copyright or "Help->About Application..." ???
Yeah, but... (Score:2)
So does this mean that those of us that build non-application software have less right to our work than those that do...?
What bullshit! (Score:2)
All all of the so-called click-wrap "licenses" (*) start off with the presumption that even though you bought a copy of software, you are not allowed to use it unless you agree to the "license" (and, in effect, give up your rights). Such a presumption, however, is not supported by copyright law. Quite simply, if you own a copy of software, you may do whatever you want with it, as long as you don't distribute copies of it to someone else. Making copies is the exclusive right of the copyright holder (fair use applies, of course).
(*) The "license" is actually a unilateral contract in that it takes away your rights instead of granting them.
Free Software licenses start off with the (correct) presumption that you can use the software in any way you want (thus, unlike proprietary "licenses", they don't attempt to take away your rights). Instead, they grant you more rights than you normally have. (Thus Free Software licenses are indeed licenses). Specifically, you get the right to distribute the software. There are, however, limitations in the ways you are allowed to do so. For example, GPL stipulates that you may not distribute the software under any other license; BSD allows you to relicense the software, but you must give credit to the original author, etc. If you agree to the license, you get the right to distribute the software; if you don't agree you have no such right.
This is how copyright works. All Free Software licenses are besed entirely in copyright law. They do not attempt to take away your rights as a condition to using the software. This makes them stronger than proprietary "licenses".
The only two cases that I'm aware of where a license was ruled unenforcible involve specifically the proprietary click-wrap "licenses". (Step-Saver v. Wyse Technology and ARS v. Software Link).
IANAL (but I play one on TV
Click-through a legal necessity...I dont think so. (Score:2)
but reading the press over the whole Mysql fiasco, click-through license seems to only be a necessity if the license is taking away a right not granted by default copyright situations. For OSI software, the licenses typically grant rights not already granted by default, and thus can only be granted via a license agreement. For instance redistribution is not a right granted under default copyright rules. So for someone to redistribute a work they MUST have a license agreement from the copyright holder to do so.
Click through becomes a necessity when defending your license agreement in situations where you are asking the users of the software to agree to give up some default rights...or you are asking them for permission to use private data or some such.
So I'd imagine for some very complicated OSI approved licenses you might need click through...but I cant see old standards like X11/BSD/GPL needing this kind of mechanism since these licenses only grant you more rights over defualt copyright rules. Maybe a click-through requirement is a good measure of whether or not its should be OSI approved. If it need a click-through wrapper...then its got to be taking away some rights from users, and therefore not in the spirit of OSI.
-jef
Would conflict with package managers (Score:3, Informative)
Each package description contains a license field. One such possible value for the field is "OSI-Approved". As fink is frequently used to automate package installations, a shrinkwrap licensing requirement would be most cumbersome, and require extra debugging. We'd have novice package maintainers submitting shrink-licensed packages with "OSI-Approved" designations, but without the logic to handle "shrinkwrap".
Please don't allow click-through. (Score:5, Insightful)
There are many reasons why click-through licenses are bad:
- They obviously place the software distributor in a place of power over the end user, something that free software is supposed to combat.
- There is no clear way to define who agreed to what. What if the purchaser isn't the same as the user? What if a user installs software on a computer and then resells that computer, with it's software, to another user.
- Software licensing is too complicated. That complication is a barrier to entry for small, independent software authors. Promotion of a software "fair use" doctrine that says that click-through licenses are unnecessary seems to be in the public interest.
- Click-through licenses provide a convenient method for a downhill slide towards prohibition of other fair uses, such as reverse engineering or published benchmarks or criticism. They may also provide a mechanism for other onerous goals: censorship ("you agree not to use this software to produce communist manifestos"), patent abuse ("you agree that our patents are valid"), barring trade or competition ("you agree not to sell this program to Pakistan or the FBI")... The list is endless. Not that this is what's planned, but once the door is opened, who knows where it leads?
- Every additional click-through license in use marginalizes the existing non-click-through licenses, making them seem more like some lunatic fringe rather than plain use of copyright law. No matter how OSI feels about the FSF and the GPL, I as a user understand and appreciate the GPL's stand on this issue: "You are not required to accept this License, since you have not signed it.
- Click-wrap licenses, if they spread to other media, will quickly lead us into a "pay-per-use" world. Click-wrap issues have barely been touched by the courts, and a small push in the right direction now may help keep us away from that path.
Please fight to keep click-wrap licenses away from Free and Open-Source Software. I understand that overly cautious lawyers (is there another kind?) will wring their hands over the idea of bucking the trend, but this is a battle worth fighting."Use" contracts make no sense (and have been shot down by courts when applied to other copyrighted content). Though you have not provided any details as to why the party in question wants them, I fail to see a compelling legal reason why they should be allowed.
Please reply to eds at reric.net if I can be of any assistance.
click-wrap should be Ok under OSI (Score:3, Interesting)
I'm a bit bemused by the idea that clicking a button during an installation process can bind me in the same way as a physical signature can. At least with physical signatures on physical documents (or even the electronic kind used at many retail stores these days) both parties to the transaction have some record that can be used, later, to prove who agreed to what. With a click-through license, there is only the presumption of acceptance, based on some pretty dodgy inductive reasoning (since you are using the software you must have, at some point in the past, clicked the "Ok" button on the license screen, hence you have agreed to, and are bound by, the EULA!).
Now, I can see that, for OSI approved license, where the original license holder may be difficult or impossible to contact, such a licensing policy would be very inconvenient, but for the bulk of commercial licenses, a more positive assent to the EULA would be preferable.
OSS Licenses don't limit your freedom. (Score:3, Interesting)
You don't need to agree with the license in order to use the product.
I remember a windows GPL:ed program (might have been a port of the GIMP) that in the installer showed the GPL like most programs show a license, but with the difference that a text below the small scrollbox said something along the lines "Please note that you don't have to agree with this license to use the program. You only have to agree with it if you want to redistribute this program" and there was only one button to continue (think it said "cool", definitely not "I agree").
Here is how I see it, but IANAL:
If no special license is agreed upon, then normal copyright laws apply. Since basically all non-OSS licenses restrict the users rights (compared to copyright law), they need to force the user to accept the license in order to use the program. They also have to convince the court that the user has seen and accepted the license before installing, thus click-through licenses.
Since OSS licenses don't restrict users (compared to copyright) but instead grants extra freedoms, there is no need to accept the license ever. If somebody violates the GPL he can't state that he has not agreed upon the license, in that case he has violated copyright instead and he's in trouble no matter what.
My impression is that the company who wants a license demanding click-through either has not thought about it enough or is trying to get a license passed as OSS compliant when it in fact is not. In either case it would be wrong to accept it.
You didn't agree (Score:2)
Re:Have a click through... (Score:2)
- When do you stop wishing she will come back and go out and get laid?
I found that not masterbating at all for a few weeks helped me to get the incentive to get laid. That way, you're directing your sexual attention to real life girls rather than photos on your monitor, in a magazine or in your imagination.Also: try to get laid a few times, then look for companionship again. Once you're confident enough with the sexual side of things you can concentrate on the more important things such as long-term partnership.
(As for licenses, I agree with you. People only need to read them if they're going to do something that might land them in court.)
Re:whats wrong with a click thru license ? (Score:2)
What would happen in this example: Let's say someone builds a web site using Apache, PHP, and MySQL. Let's say each of these require a click-through license agreement. Now, does only the site developer have to click through and agree to the licenses, or will each visitor to the web site have to agree to them all (including, presumably, a license for the web site itself)?
Re:whats wrong with a click thru license ? (Score:4, Insightful)
This isn't windows where you can be sure that everyone is using a GUI, and
doing the install on a GUI... how about an OS install?
When I install even a very minimal Debian system I am sure that the software beinbg instatalled is not all licensed from Debian, in fact, only a versy small amount of it is. Some of it is the FSF, some of it is Xfree86, some of it is Berkley, some of it is licensed from other people entirely.
I should have to "click through" how many hundreds of times to get the OS on my box? How about if I want to impliment automated installs? Like say my office mate whpose job it is going to be to setup a research computing cluster... installing software in parallel on a whole cluster of boxen at once?
Secondly, I don't knbow if you read it but neither the GPL nor any other Free Software license that I have seen says much about USE of the software. USE is implied by posession, its Fair Use. You only need these licenses to DISTRIBUTE the software. Thats the whpole reason the GPL exists... to give people terms of a distribution license.
I think thats the major disconnect here, these are not USE licenses (frankly IMNSHO use should be covered under fair use doctrine anyway, making the whole "click through" issue moot) they are distribution licenses.... and not neede dfor use at all...
Its very simple. Legally you have no right to redistribute a copyrighted work by default. So if you don't accept the distribution license (GPL, BSD, whatever it is) then you have no legal right to distribute. So distribution implies agreement with the license.
-Steve
But it raises a point (Score:2)
But it accidentally raises a interesting point. With Slashdot so much a part of the "Open Source community" for some people, other then Taco's moral conscience, does it have a legal obligation to not actually censor users open dialogue here?
For instance, I would image it's perfectly legal for editors here to delete obvious trolls such as above. But what if a valid post is made, making disparaging, but true remakes about Open Source, or Mozilla, or something similar. It's on topic, completely factual, not a troll or flame-bait in the least (unless disagreeing with status quo counts as flame bait).
It's a private site, so in that sense editors could delete the post. But isn't there some assurance of accurate representation that the discussion is from the users, and not controlled and certain thoughts censored by editors?
Re:Ignorance of the law is no excuse (Score:2)
Seriously, though, ignorance of the law is no excuse. Once you set a legal precident that every user must click-through and agree to the license agreement, then you're setting a precident that ignorance of the law is an excuse. Anyone could then claim they were "obviously" free to copy something if the copyright holder did not inform them of their license terms.
That, of course, is utter nonsense. The law used to require a simple copyright notice, period. That was sufficient to inform you that you may not copy the work, period. Now the copyright holder doesn't even need that. The law now says you must assume everything is copyrighted and you cannot copy it unless specifically told otherwise. It is in your interest to read any license that grants you rights beyond the legal default "none". Microsoft et.al. have established a precident here where they treat their customers like idiots who must be constantly reminded that copyright infringement is wrong; there's no reason for the Open Source community to join the madness.
The GPL is not an EULA (Score:3, Insightful)
If you want to install emacs on your computer, you don't have to agree to anything. If you want to install Microsoft Word, you are bound by the EULA.
If, however, you want to redistribute emacs or modify the program, you are bound by the GPL. If you want to modify of redistribute Microsoft Word, you may be held liable for civil and criminal penalties.
I suppose if you distributed emacs without source, those same penalties might still apply. The GPL is so much easier...