Subject: RE: Legal soundness comes to open source distribution
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Sat, 3 Aug 2002 09:25:17 -0700

> On Fri, 2 Aug 2002, Russell Nelson wrote:
> > From what various legal scholars
> > tell me, a non-contractual license (such as the GPL) cannot 
> cause you 
> > to give up your warranty rights.

> On Sat, 3 Aug 2002, Brian Behlendorf wrote: 
> Is there a reference of some sort for this?  It's about the 
> only solid reason I see to need to go beyond copyright law.  
> Is there any court precedent that suggests this?  A case 
> where someone was given something for free, with warranty 
> disclaimed in a copyright license, and the court decided that 
> warranty disclaimer was invalid?  This is a pretty big delta 
> to current understanding, so if a change as large as 
> expanding the OSD to cover contracts is based upon this, we 
> need more than hearsay.
> 
> Are there any other reasons to consider allowing the OSD to 
> cover contracts?  My sense is that keeping it limited to 
> copyright licenses has been key to its success to this point.
> 
> > Agreed.  That's why I think we need to amend the OSD so that it 
> > clearly states that a license must not restrict use, 
> modification, or 
> > redistribution of the software.
> 
> The OSD, by applying to copyright licenses, already allows 
> restrictions on redistribution.  It'd be kinda toothless if 
> it didn't...

I am baffled by everyone's confusion and philosophical rantings.  Almost
every license in OSI's approved list is much more than a copyright
license.

The MPL (and almost all similar licenses), for example, contains a
patent grant that specifically applies to "use" and "practice" and it
disclaims application of those patents to "the combination of the
Original Code with other software or devices."  It contains a defensive
suspension provision relating to patent litigation that applies to users
of the software as much as to distributors.  It contains a limitation of
liability clause (not related to the warranty provision) that limits
liability for damages of any sort.  It contains restrictions on U.S.
government rights.  It contains a comprehensive set of miscellaneous
provisions that govern contract interpretation, governing law,
jurisdiction and venue, attorneys' fees, even a disclaimer of the United
Nations Convention on Contracts (!) for the International Sale of Goods.

What makes anyone think that this *CONTRACT* will be interpreted by the
courts strictly under copyright law?

Now, what if a distributor under the MPL insists that *users* of his
software indicate clearly their assent to this contract?  Should the OSD
prevent such manifestations of assent?

This entire discussion of click-wrap has gotten so politicized that you
are confusing your own lawyers with your opinions.

/Larry 

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