Subject: RE: discuss: No Warranty License.
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Thu, 27 Feb 2003 17:26:39 -0800

Right on!  /Larry

> -----Original Message-----
> From: Rod Dixon, J.D., LL.M. [mailto:rdixon@cyberspaces.org] 
> Sent: Thursday, February 27, 2003 4:42 PM
> To: Justin Chen-Wells; Nathan Kelley
> Cc: OSI License Discussion
> Subject: Re: discuss: No Warranty License.
> 
> 
> One way around this apparent conundrum is adopt the 
> suggestion in OSD. Point out the restriction that may exist, 
> but do not actually incorporate the tersm of the restriction 
> in your license.
> 
> 
> 5. No Discrimination Against Persons or Groups
> The license must not discriminate against any person or group 
> of persons.
> 
>   Rationale: In order to get the maximum benefit from the 
> process, the maximum diversity of persons and groups should 
> be equally eligible to contribute to open sources. Therefore 
> we forbid any open-source license from locking anybody out of 
> the process.
> 
>   Some countries, including the United States, have export 
> restrictions for certain types of software. An OSD-conformant 
> license may warn licensees of applicable restrictions and 
> remind them that they are obliged to obey the law; however, 
> it may not incorporate such restrictions itself.
> 
> 
> 
> 
> 
> Rod
> rod@cyberspaces.org
> http://www.cyberspaces.org/dixon/
> My papers on the Social Science Research Network (SSRN) are 
> available through the following url: 
> http://papers.ssrn.com/author=240132
> 
> 
> 
> ----- Original Message -----
> From: "Justin Chen-Wells" <jread@semiotek.com>
> To: "Nathan Kelley" <digitaleon@runbox.com>
> Cc: "OSI License Discussion" <license-discuss@opensource.org>
> Sent: Thursday, February 27, 2003 8:53 AM
> Subject: Re: discuss: No Warranty License.
> 
> 
> :
> : You have to be careful with this:
> :
> :     o Open source developers ought to be able to limit their
> :       liability, otherwise many firms and individuals may be
> :       unwilling or unable to contribute code
> :
> :     o You risk binding the OSD to the union of the laws of every
> :       jurisdiction on earth, no matter how crazy the laws may be
> :
> : The second point requires explanation. You have said that this "No
> : Warranty License" fails to comply because it discriminates against
> : people in a particular jurisdiction. Your reasoning was that the
> : laws of that region are beyond the control of its inhabitants
> : (questionable) and therefore preventing use of the software under
> : a particular legislative regime amounts to discrimination against
> : a group.
> :
> : There's some merit in that, as for example we wouldn't want to
> : accept a license which said the software could not be used, or
> : could only be used, in a democracy.
> :
> : On the other hand supposing some government passes a law:
> :
> :     No citizen shall accept a software license which requires
> :     publishing the source code of a derivative work.
> :
> : Would we then declare that the GPL is not OSD because it 
> discriminates
> : against people in that legislative jurisdiction?
> :
> : In and of itself I don't think we want to reject a license merely
> : because of an incompatibility between a license and a law that
> : results in the inability of people subject to that law to accept
> : that license.
> :
> : Justin
> :
> :
> : On Thu, Feb 27, 2003 at 11:12:32PM +1100, Nathan Kelley wrote:
> : > To OSI License Discussion subscribers,
> : >
> : > >> From: Anonymous Poster,
> : > > From: David Johnson <david@usermode.org>,
> : >
> : > I have concluded that the "No Warranty License" does not 
> conform to the
> : > Open Source Definition. The offending clause is as follows:
> : >
> : > >> If the following disclaimer of warranty and liability 
> is not valid due
> : > >> to the laws in a jurisdiction then NO RIGHTS ARE 
> GRANTED in that
> : > >> jurisdiction without the express written permission of 
> the copyright
> : > >> holder.
> : >
> : > This violates Item 5 of the OSD, which states that "The 
> license must
> : > not discriminate against any person or group of persons.". By not
> : > granting equal rights to users, distributors and 
> open-source developers
> : > based on factors beyond their clear control (the laws of their
> : > jurisdiction), they are being discriminated against.
> : >
> : > This also violates Item 7 of the OSD, which states that 
> "The rights
> : > attached to the program must apply to all to whom the program is
> : > redistributed without the need for execution of an 
> additional license
> : > by those parties.". Users, distributors and open-source 
> developers in
> : > affected jurisdictions cannot exercise the rights they 
> are guaranteed
> : > under the OSD for OSD-compliant licenses without 
> obtaining additional
> : > permission ("license") from the author.
> : >
> : > Further, the only way to effectively enforce this license 
> is to prevent
> : > users in the affected jurisdictions from obtaining or using the
> : > software, since as I understand it (IANAL, TINLA, CMIW), 
> the wording of
> : > a license cannot override the laws of a jurisdiction, nor 
> physically
> : > prevent someone from filing a suit on those laws; it 
> might put you in a
> : > more favorable position (that, if assent could be proven, the user
> : > assented to the terms and has now violated that; what legal
> : > significance this would have is questionable), but that's all.
> : >
> : > Since the offending clause forms the only tangible 
> difference between
> : > the No Warranty License and the BSD License, I recommend 
> that the No
> : > Warranty License be rejected.
> : >
> : > >> Basically, I want a BSD license but I don't want some 
> chuckle-head in
> : > >> a
> : > >> country where warranty disclaimers aren't valid trying 
> to start a
> : > >> legal
> : > >> fuss. The only possible point that could be raised is 
> point #5 of the
> : > >> open source definition. However, I think calling this 
> discrimination
> : > >> against a person or group is a bit of a stretch.
> : >
> : > Unfortunately, it's not a stretch at all, for the reasons outlined
> : > above.
> : >
> : > The discussion over the past half-year has included a lot of
> : > suggestions of ways to get small open-source developers 
> out of the very
> : > real threat that an enterprise-level suit could ruin 
> their lives for
> : > essentially contributing 'freely' to the world. I think 
> there is some
> : > consensus that as laws in a number of countries currently 
> stand, this
> : > is problematic at best and impossible at worst, without 
> changes to the
> : > relevant Acts.
> : >
> : > So far, what has saved open-source developers has I 
> believe had little
> : > to do with legalities; it benefits no-one, there is not 
> likely to be
> : > any cost recovery, it only delays the fixing of the 
> actual technical
> : > problems (where these exist), and it makes for really, 
> really bad PR
> : > for those doing the suing at a time when it seems like the 'little
> : > guys' are readily being squashed flat by the 'big guys' 
> for the sake of
> : > the latters' own business and political interests.
> : >
> : > I agree that steps should be taken to protect authors, but this
> : > approach, like the others we have seen that attempt to 
> stop any suit in
> : > its tracks, is doomed to failure. It comes down to using 
> a license to
> : > attempt to make authors untouchable, a position that any 
> judge will
> : > simply not accept.
> : >
> : > > But there's a bigger issue. The author doesn't want some
> : > > "chuckle-head" suing him, yet what's to prevent some 
> chuckle-head
> : > > author from suing users under the same clause? What if 
> I don't know if
> : > > this warranty is valid in my jurisdiction, and give the 
> software to a
> : > > friend? Will I get sued because I didn't receive the right to
> : > > distribute the software?
> : >
> : > How will the author know you re-distributed it to your 
> friend, since
> : > there is no requirement to advise the author? And unless 
> the author has
> : > logs from your workstation or ISP at the time (both very hard to
> : > procure), how will they prove that you exercised rights 
> of distribution
> : > that were not granted to you by the license and that are normally
> : > forbidden? And for what reason could they sue you? For potential
> : > damages from as-yet unfiled suits from as-yet unknown users?
> : >
> : > > In addition, the warranty covers use of the software, 
> yet I can obtain
> : > > the right to use the software without having to agree 
> to the license.
> : >
> : > And here you hit the nail on the head; rights granted to 
> you by law
> : > which cannot be overridden by a license except by the 
> licensor granting
> : > rights to the licensee. So in such jurisdictions as 
> yours, you can get
> : > obtain program and use it, but not do other things such as
> : > re-distribute it or make derivatives. Does this hurt you? In a
> : > philosophical sense, yes, but in a practical sense, 
> probably not. It
> : > does hurt the author though, and since we know that 
> software authors
> : > are in principle not masochistic...
> : >
> : > Cheers, Nathan.
> : >
> : > --
> : > license-discuss archive is at 
> http://crynwr.com/cgi-bin/ezmlm-cgi?3
> : --
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