Re: [openorb-devel] Re: Asking for Italio's stand regarding the OpenORB donation

[Joncheng K. <ck...@sy...>]

  Hi, Thierry,

A week ago I made a proposal for using auto-extracting executables that 
unpacks software only when a user agrees with the license statement 
associated with the software. In this way, a binding contract can be 
established between the user and the provider of the software. This 
approach is used by several Java products from Sun (although the Sun 
website also requires clicking-through before downloading). Can this 
approach be used as an alternative for clicking-through? Theoretically a 
user can still bypass this licensing step and extract the software on 
his own, but doing so requires a user to have a special tool to 
circumvent the licensing step. What do you think?

Joncheng Kuo

-------- Original Message --------
Subject: Re: [openorb-devel] Re: Asking for Italio's stand regarding the 
OpenORB donation
Date: Mon, 22 Sep 2003 21:34:33 -0400
From: Joncheng Kuo <ck...@sy...>
To: Greg Stein <gs...@ap...>
CC: Polar Humenn <pol...@ad...>, Thierry Koehrlen 
<tk...@in...>, openorb-devel <ope...@li...>
References:



Hi, Greg,

Thanks. Now I understand what it means to creating a binding contract. I 
have one more question. Some software uses auto-extracting executables 
which unpacks the software only when the user agrees with the provided 
term of use. Is this approach as strong as the click-through approach? 
Is this approach acceptable for Apache to implement? From what I can 
see, Apache does not have to do anything with this approach except for 
disabling anonymous CVS access to the source code.

Joncheng

Greg Stein wrote:

>On Mon, Sep 22, 2003 at 02:41:52PM -0400, Joncheng Kuo wrote:
>  
>
>>...
>>My understanding from the above is that both the Apache's and Intalio's 
>>licenses aren't "strong enough" in protecting Apache/Intalio and their 
>>contributors from the Intalio's point of view. If Thierry agrees with my 
>>understanding, then my conclusion is that Intalio is trying to ask 
>>something "more" than what they have now. I think that's the main point 
>>that you want to get across,
>>    
>>
>
>Yes, that is my main point.
>
>Further, since Intalio is "exposed" today (in terms of liability), they
>can lessen that liability through donating the software to the ASF.
>Effectively, the ASF will then become a legal hurdle for a claimant to
>pass before reaching Intalio. I'm not even sure they *could* get to
>Intalio with the ASF in the way, asserting ownership of the codebase.
>
>  
>
>>but I can't tell whether Intalio agrees 
>>with this view point or not.
>>    
>>
>
>Not sure.
>
>  
>
>>...
>>    
>>
>>>Intalio is asking for a click-through system on the Apache site. They
>>>aren't asking for license changes. The ASF is not going to custom-build
>>>licenses in any case. (not to mention that we're developing a v2 of the
>>>license which doesn't require the renaming to occur)
>>>      
>>>
>>If making the license stronger can solve the problem, is it a possible 
>>way to go? Is it possible for Apache to have a stronger license in v2? I 
>>recall that you said that you agree with Intalio's asessment that the 
>>current Apache license does not create a binding contract between Apache 
>>and the user.
>>    
>>
>
><IANAL>
>
>My understanding of licensing and liability is this:
>
>Copyright licenses restrict the redistribution of the software, not the
>actual use. Even though you may be able to get a copy, there is nothing
>that shows you entered a "mutual understanding" with the entity
>distributing that software (easy to show that a download can take place
>without any consensual interaction between the two entities: the supplier
>and the downloader). That mutual understanding is a necessary precondition
>in contract law, which is how liability concerns are addressed. In
>essence, there isn't anything you can put into a copyright license to
>truly reduce your liability. This affects *all* open source licenses.
>
>The use of a click-thru system creates that mutual understanding. You
>don't get the software until you agree to be bound by the provided terms.
>Note that those terms don't even have to be in the license. It is a
>separate "contract", if you will. And that contract can state that you
>agree to not hold the supplier liable. By consenting to be bound (actually
>hitting the "I agree" in a click-thru), you are showing a mutual
>understanding to a court of law, and you'll have a very hard time bringing
>most kinds of liability suits against the supplier. (I imagine there will
>always be certain ways to weasel out of the agreement you clicked, but
>that's the exception rather than the rule)
>
></IANAL>
>
>Hope that helps.
>
>Cheers,
>-g
>
>  
>