August 2, 2002

Open Source definition could change to include "click-wrap" terms

- by Tina Gasperson -
The Open Source Initiative board meeting last week raised the issue of so-called
"click-wrap" software, in which the user must agree to the terms of the software
license before using it. Board member Russell Nelson, in a post to the
license-discuss list, wrote: "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."The OSI board meets regularly to approve software licenses as "OSI
Certified." A list of 33 approved licenses appears at opensource.org.
According to Nelson, in late July the board was asked to approve a license that
includes a requirement for "click-wrap."

The party submitting the license remains unidentified, but Nelson says that the
OSI has consulted experts who maintain that a software license without
"click-wrap" is "weaker at protecting your rights."

Nelson asked the license-discuss list whether the Open Source Definition should
be modified to make clear whether such "click-wrap" licenses are allowed or not.
He says the board could go either way, but wanted to solicit the opinions of the
list first.

Early responses seemed to indicate mixed feelings about the idea of
including "click-wrap" as part of an approved Open Source license. Rod Dixon, a
visiting professor of law at Rutgers University, wrote. "My response is yes. In
fact, the OSD recommendations I am developing as part of the OSD Model Code
proposal will include a suggestion on which article and what language might be
best to accomplish this."

List reader David Johnson pointed out: "... The problem here is the term
'click-wrap'. There are two types of license presentation in use today that are
referred to by this term. The first is where the license is presented during
installation or first usage. The second is where the license is presented before
one can acquire the software."

He says that the first type of "click-wrap"
license is not good for Open Source software because the user already has
certain rights just by dint of possessing the software, as in the case where a
piece of software is purchased from a retail location, but the user must agree
to the license after taking it home and opening the package.

However, Johnson argues that the second type of "click-wrap" license is fine for
Free Software users because they would have to accept it before gaining any
rights to the software, as in a situation where the software was available for
download, but only after the user agreed to the terms of the license.

List member Ian Taylor seems positive about the idea. "Personally, I would say that a click-wrap license can be an open
source license. Perhaps more to the point, I think that an open
source license can mandate an appropriate click-wrap in any derivative
work.

"I see this as an extension of GPL 2(c), which says that an interactive
program is required to display a copyright notice and a notice saying
that there is no warranty."

You can read the thread containing these messages and replies at the license-discuss archive.

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