It is an established fact in case history that Terms of Service are only upheld by courts when they are presented to users in a conspicuous way through a browsewrap or clickwrap agreement. [1] [2]
Users of Open Source Software are in most cases in my experience not presented either a browsewrap or clickwrap agreement. Therefore a user hating a particular Open Source Software project could obtain it, use it, have damages, and then sue its producers for damages while claiming no Terms of Service were presented to the user, therefore no limitation or disclaimer of warranty would be available to the producers. The argument could stop here, but I'll try to clarify a few things that might come up. defaults vs non-defaults: - copyrights: works are copyrighted by default - Terms of Service: don't exist by default, only are upheld if presented to users in conspicuous way. - warranties: exist by default by law unless effectively disclaimed through agreement Without Terms of Service being upheld by court, the only fallback is the law, which may include liability/warranty. By the law, in layman's terms, in summary: - developers are "expected to be smart" - users are "to be protected", "expected to be dumb" The copyright protection / licenses of the Open Source Software, in my view, do apply and are effective with respect to copyright. Developers can't obtain Open Source Software, then claim "no Terms of Service were provided to me", "it was implied to be in the public domain", and then take some let's say GPL'd software package and turn it into proprietary software. That's the developers are "expected to be smart" part of the license which I believes is effective. That's the copyright law part. However, liabilities, warranties, disclaimers are a different beast. That's related to the Uniform Commercial Code (UCC), which applies to "transactions". There's a detailed paper that makes the case that Libre Software downloads meet the definition of a "transaction" under UCC. [4] That's the users are "to be protected", "expected to be dumb" part. Providing warranty is "the default". And, "I didn't see the Terms of Service, therefore these don't apply to me" has worked in courts before. All of this is a bit specific to laws of USA but may be quite similar in other jurisdictions. In other jurisdictions, namely Germany, even if the software distributed is both libre and gratis, the law regards all transactions as governed by contracts. Buying a battery in a shop without speaking is considered an implied purchase contract, no written form or signatures required. Warranty included. Even gifts are transferred under a so called "gift contract" / "contract of donation" that comes with an implied warranty. Disclaimers of warranty for gifts may be partially possible, one exception is gross negligence which cannot be disclaimed. Possible solutions: - Open Source Software website with _effective_ browsewrap agreement [1] [2], and/or - Open Source Software installer with clickwrap agreement [1] [2], and/or - Open Source Software first start screen with clickwrap agreement Inspired by a paper mentioning GPL in context of clickwarp / browsewrap. [5] > In Specht v. Netscape Communications Corp., the court refused to enforce Netscape's browsewrap license for its SmartDownload software because the customer was neither required to view the license nor manifest assent to it prior to downloading the software. 203 The court, while noting the acceptance of clickwrap licenses, required that the customer would (a) actually see the license agreement and (b) manifest actual assent.204 Kind regards, Patrick Personal disclaimer: I am not a lawyer. This is not legal advice. [1] https://termsfeed.com/blog/browsewrap-clickwrap/ [2] https://termly.io/resources/articles/browsewrap-vs-clickwrap/ [4] https://cpb-us-e1.wpmucdn.com/sites.suffolk.edu/dist/5/1153/files/2014/12/McJohn-THE-GPL-MEETS-THE-UCC.pdf [5] https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1057&context=ckjip https://web.archive.org/web/20160912182127/https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1057&context=ckjip _______________________________________________ License-discuss mailing list License-discuss@lists.opensource.org http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
