Licensing and ClickWrap/ClickON Defined:
"The National Conference of Commissioners on Uniform State Laws is drafting a new
article (Draft Section 2B-308) of the Uniform Commercial Code (UCC), which forms the basis
for contract law in most states. This new article addresses mass market licenses and
states that in most instances "shrink wrap or click on" licenses would be
enforceable. Under such a proposal, a license included in a software product could state
that by removing the software's shrink wrap packaging, a user agrees to waive all fair
use privileges associated with the software. "
"Similarly, a license written by a web page designer could provide that by clicking
on the "next page" icon, the user agrees to refrain from copying any facts
appearing on the web page. Such proposals would permit content owners to significantly
restrict the rights of users of copyrighted materials."
JWMComments: The common term for this type of licensing on a web page is called
"clickwrap or clickon." We are all familiar with the "shrinkwrap"
licensing that comes with software we purchase. "Clickwrap" licensing would
restrain the user from any use of the "fair use" clause under current copyright
laws. In other words, you can read it, but that's about it.
The USGW Notice stated (see endnote 1) is an attempt at "Clickwrap." It is
legal, binding and would severely restrict the intent of USGW archives and fair use of
materials. Any submitter, under the terms of this "Clickwrap" contract could
bring up in a court of law, liability damages against a user who retransmitted,
republished or otherwise 'used' any portion of the data that was submitted without
prior 'written' permission and proof of that permission to the USGW Archivist File
Monitor.
What does this mean for USGW Archives? It means that under current law, the USGW Archive
will be required by law to maintain a file of requested materials. These requested
materials must contain the appropriate language exchange between the parties of the
submitter and the requester and that exchange must be available for a compliance check
under current Intellectual Property Rights Law Challenges.
My Question: Do we really want to get into the business of maintaining files on
Copyright?
If we "Clickwrap" license the USGW Archives, that is exactly what we will be
doing, that is, make a requirement to maintain copyright files in accordance with Federal
Statutes and as appropriate, State Statutes. Not only will we be restricting the Fair
Use Clause currently in law of the federal statutes for Copyright Law, but we will be
hamstringing the original purpose of USGW accessible and free information on the Internet.
Furthermore, the extra step of making the user obtain 'written permission' and
submitting that permission, will discourage any benefit of having the files in the first
place.
To paraphrase Bill Gates "We'll let you know when you need Fair Use." A
-reference to Shrinkwrap licensing.
I fear the USGW Notice statement has gone too far and we are shooting ourselves in the
foot.
James W. McCLUER
1. "USGENWEB NOTICE: These electronic pages may NOT be reproduced in any format for
profit or presentation by other organization or persons. Persons or organizations desiring
to use this material, must obtain the written consent of the contributor, or the legal
representative of the submitter, and contact the listed USGenWeb archivist with proof of
this consent."