Subject: Re: Legal soundness comes to open source distribution
From: Russell Nelson <nelson@crynwr.com>
Date: Mon, 5 Aug 2002 09:50:49 -0400 (EDT)

Mahesh T Pai writes:
 > No court will impose a liability on creators of software who have no 
 > inkling about the use to which the software is being put to, unless 
 > either (a) consideration passes between the user and the creator or (b) 
 > the doctrine of injurious reliance is attracted ("I suffered a loss 
 > because I trusted your promised donation and incurred an expense"). 

You are assuming that the court is ruling based on the natural law.
In the USA, the courts have to rule on the written law, which is
subject to political pressures.  Imagine, if you will, that a large
proprietary software firm (or consortium) wishes to destroy open
source software.  If they can require that all software come with a
warranty, the job is done -- time will cook the soup.

 > What should be debated is not whether Open Sourced software should be 
 > covered by "click-wrap" or not, but whether open source software should 
 > be covered by product liability or not.  I feel that the answer is "no". 

I do, too.

 > What is really necessary is a campaign to take Open Source Software 
 > outside the scope of (compulsory) statutory product liability.

Agreed.  And until that happens, what should we do?  As Bruce Perens
says, the issue is practicality.  Is it practical for open source
developers to take the risk of product liability just so they can give
a gift?

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