Subject: RE: prohibiting use that would result in death or personal injury
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Mon, 24 Jul 2000 14:27:22 -0700

I've been following this thread and finally have the time to register my two
cents on the topic.

In the final analysis, regardless of the language you put into your license,
you may not be able successfully to avoid a lawsuit if your software causes
personal injury or death, because you cannot prevent people from suing you
if they are so inclined.  I encourage everyone who has any property worth
protecting to get insurance that will at least cover legal fees to defend
yourself.  An umbrella policy is often a relatively inexpensive protective
measure.

You also may not be able to avoid losing such a lawsuit and having to pay
damages, not because there is a black letter law you "violated" but simply
because you cannot always predict what a judge or jury will say.  I think
the likelihood of having to pay damages because your open source software
happened to be used by an end-user in a "life-safety system" is very remote.
This is particularly true for general purpose software like operating
systems, printer and other device drivers, and Internet-related services.
However, if you are writing software intended to be used on iron lung
machines or to control rocket engines, you are more likely to be held liable
if your software was negligently designed or implemented.  Once again,
liability insurance helps just in case you get a bad judge or jury.

As a matter of fairness to your customers and end-users, however, I think it
is wise to warn them that your software should not be used by them in ways
that you yourself wouldn't trust it to be used.  That's just common
courtesy.  If my software is not robust, I don't want someone risking life
or limb by using it.  On the other hand, open source software has the
potential to be more robust than proprietary software if only because "Given
enough eyeballs, all bugs are shallow."

I don't think the question of whether there was consideration paid for the
software is particularly important.  I probably wouldn't be able to escape a
lawsuit for damages if I gave away poison rather than sell it to the
unsuspecting public.

There have been situations where people have been sued for what they wrote
in a book.  A magazine publisher cannot post ads for contract killers, for
example, and then say he bears no responsibility for the resulting murder.
Don't expect either copyright law or contract law -- or the free speech
provisions of the U.S. Constitution, for that matter -- to protect you if
you are not reasonably careful.

Simply because I wouldn't want any client of mine to lose sleep over this
issue, I also wouldn't want him to be cavalier and incautious about obvious
risks in software he promotes for public use.

/Larry Rosen
650-366-3457
lrosen@rosenlaw.com
www.rosenlaw.com

>-----Original Message-----
>From: Brian Behlendorf [mailto:brian@collab.net]
>Sent: Monday, July 24, 2000 1:24 PM
>To: Justin Wells
>Cc: license-discuss@opensource.org
>Subject: Re: prohibiting use that would result in death or personal
>injury
>
>
>On Mon, 24 Jul 2000, Justin Wells wrote:
>> Refresher: what we're talking about is whether or not you can get away
>> with "do not use this software for life-safety systems" in an opensource
>> license (violating fields of endeavour) and if you don't disclaim
>> that, are you open to unlimited liability.
>
>Are you sure in your jurisdiction that that applies to transactions
>without "consideration"?  E.g., I can buy that for the raft example you
>gave, but you're paying the rafting rental place; no one is paying the
>open source developer for that code (unless they've hired them to do
>so).  I do know that courts look much differently at contracts that are
>"without consideration" than those that are.  In fact, keeping this in the
>realm of copyright law and *not* contract law may be the clincher - do you
>have any evidence of someone writing a book on some subject, then being
>sued (successfully) when using the information in that book led to some
>unfortunate situation?  I think that's a closer comparison than the
>rafting example.
>
>	Brian
>
>
>