Subject: Will we be sued?
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Mon, 29 Dec 2003 17:04:16 -0800

 Mon, 29 Dec 2003 17:04:16 -0800
Thread renamed from "Why?"

Jan,

Your email highlights the irrational fears that some in the open source
community have about being sued.  If we exclude those who haven't got enough
money to be worth suing over intellectual property infringement, and exclude
those who stop doing infringing things when they are made aware of
accidental infringement, there are only a few deep-pocket defendants left.  

But for some of us, this is the United States, and we know that anyone can
sue anyone else if they can afford the filing fee.  Potential litigation is
a risk of doing business here, even free business.  

Of course we disclaim most warranties and liability in our licenses.  Why
should we willingly accept potential liability when we give our software
away for free?  Despite what our licenses say, however, we are subject to
local laws relating to gross negligence and fraud.  As a matter of public
policy in many civilized jurisdictions, we can't recklessly distribute
damaging software to consumers and expect to get away with it.

So we should treat free software businesses as real businesses.  Behave
professionally and ethically in all our intellectual property transactions.
The chances of being sued when we do that are slim to none.  But it is wise
to put some money into your bank account just in case you need to hire a
lawyer to answer all your questions.

/Larry Rosen

> -----Original Message-----
> From: Jan Dockx [mailto:Jan Dockx@peopleware.be] 
> Sent: Monday, December 29, 2003 2:50 PM
> To: David Presotto; Alex Rousskov; Ian Lance Taylor; Rick 
> Moen; John Cowan
> Cc: license-discuss@opensource.org
> Subject: Re: Why?
> 
> 
> Thanks for all your answers, but let me go at this one by one:
> 
> 1)
> a) Do I understand it correctly that you  believe  that you 
> can be sued 
> for damages if code that is distributed for free  fails , at least in 
> the States? And that a disclaimer as it is presented with most Open 
> Source licenses makes this threat go away?
> b) If so, is there any documented case of someone being sued for 
> damages incurred from gratis code?
> c) If so, is there any documented case of a case being overthrown 
> because of the disclaimer?
> 
> 2) An important aspect of the disclaimer seems to be a protection 
> against possible patent infringement. As a single developer 
> we are not 
> able to do extensive patent research, we publish the code, and if 
> anybody later claims that we broke a patent, we want to be protected.
> a) Do I understand it correctly that you  believe  that a 
> disclaimer in 
> this respect makes this threat go away?
> b) If so, how? People are using software, which they found on 
> the net, 
> which they use in good trust, often without them being in a 
> position to 
> read source code or do the extensive patent research themselves. But 
> the software is being used, so the damage to the patent owner 
> is real. 
> And we are not going to pay for it because of the disclaimer.
> i) Do we believe that ignorant end users will be condemned in 
> to paying 
> royalties retroactively?
> ii) Do we believe that an organisation like the Apache Software 
> Foundation, Red Hat, IBM, Apple, Lucent is indemnified by 
> such a clause 
> (either as original authors, or as distributors)?
> iii) If not so, and if so, who's paying the bill? Or have we 
> constructed a giant ripp-off here that indeed is able to kill of 
> software patents? (Luckily, we do not have such idiocy in Europe :-P).
> 
> Note: this sounds a lot like questions arising from the SCO, 
> eum, case, 
> but it is not. That is about copyright and ownership, not about 
> patents, if I am correct.
> 
> 3) I do not understand how the Lucent example relates to my question 
> about the difference between a permissible license such as BSD and 
> public domain. My main question here is: why are we so obsessed with 
> licenses? I understand for the FSF, and the copyleft issues, but what 
> are we trying to do with the permissible licenses, such as 
> BSD, Apache, 
> Mozilla? What is the difference with public domain?
> 
> On 29 Dec 2003, at 6:55h, David Presotto wrote:
> 
> > However, to be
> > most useful to the rest of the company, we need to let our 
> code also 
> > be mixable with proprietary stuff in the company. We could 
> do lots of 
> > bookkeeping to separate what we wrote from what others 
> wrote and keep 
> > two versions ove everyting, or we could settle on 
> copy-center and not 
> > bother.  We did the latter.
> 
> I must admit that I'm not familiar with the term "copy-center". I 
> presume you mean a permissive license like BSD and the like?
> 
> a) If so, you are in an excellent position to answer my question: why 
> did you or Lucent feel it necessary to do more than put the 
> code in the 
> public domain? Why have you spend hours, if not days, as I understand 
> from your response, debating with highly skilled people over the 
> license? Which aspect of "public domain" were you not happy with?
> 
> > The first problem was that the BSD wording was inadequate 
> for covering 
> > our corporate ass.  As a large company, we get sued a lot.  
> If we were 
> > making a lot of money as a result of the code, then we'ld just set 
> > some of it aside to pay for the lawsuits.  However, at least in the 
> > case of Plan 9, we don't.
> 
> b) So, you the license is a giant disclaimer for you? Correct?
> 
> 
> 4)
> > Therefore, there is more disclaimer wording and an indemnification 
> > clause added so that we're less liable for what some redistributor 
> > does with or promises about our code.
> a) Please confirm: you do  believe  that Lucent might be sued 
> for what 
> a third party might do with something Lucent gave away for free (at 
> least in the States)? So, if I win an Orinocco card in a 
> lottery, and i 
> use it to stick my sisters eye out, or I sell it saying that it is a 
> terrabit wireless card, you  believe  Lucent might end up in 
> litigation 
> (at least in the United States)?
> b) If so, are there any documented cases (actually, this is 
> the same as 
> 1b), sorry)
> 
> 5)
> > Finally, our lawyers wanted termination language.  If 
> someone doesn't 
> > abide by the rest of the license, there has to be a way to revoke 
> > their rights to it.
> I understand. At least, if there is something to protect. If 
> there is a 
> contract, you need a stick to beat the naughty boys or girls. But, 
> again, what are you trying to protect? I don't understand 
> this even if 
> your license is a giant disclaimer.
> What am i missing?
> 
> 6)
> > By the way, in anser to:
> >
> >> Are we really afraid that we will be sued for
> >> damages by something we give away for free
> >> (as in free beer)?
> >
> > the recipient may not have gotten your code for free.  Anyone can 
> > redistribute for money as part of something they build or just with 
> > better packaging and/or support.  The original contributors can and 
> > will be sued for anything that goes wrong; its the american way.
> If you say so. I understand that for the patent infringement 
> (see lower 
> and above), but for damages, I think it is weird. I would expect the 
> party that made money of it to get sued, and possibly convicted, but 
> not the original authors that put the thing in the public 
> domain. Actually, that would mean that also research papers 
> on physics or 
> medicin or pharmaceuticals need a disclaimer. If the 
> researcher made a 
> mistake, or even if some third party misused the paper, the 
> researcher 
> can get sued.
> Hm. Sorry, but I'm not really convinced.
> > You can get sued for patent
> > infringement if the combination of something you build
> > and something someone else adds to it steps on a patent.
> > Try giving teenagers free beer here and see what happens 
> after the car 
> > accident.
> > --
> > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
> 
> --
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