Subject: RE: Question regarding a new local license approach
From: "Chris Yoo" <cyoo@squiz.net>
Date: Fri, 11 Mar 2005 10:05:24 +1100

Thank you Walter for raising this issue. Speaking from an Australian
perspective, I have found that disclaimer clauses in most currently
certified US-based licences are problematic under Australian law. These
issues were identified by Ian Oi in his submission of the OZPBL for approval
(See
http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:9262:200412:jneejnfcgpacdjcfbo
kf), whereby disclaimers containing wording inconsistent with the Australian
Trade Practices Act may result in the whole disclaimer (and potentially the
whole licenece in which the disclaimer is contained) being void and
unenforceable under Australian law. In fact, I believe his submission for
certification to have been based wholely on this premise. 

On a more general note, should the OSI decide to take a restrictive approach
to licensing, how does it plan to deal with the requirements of local
jurisdictions? Would I, as an Australian software developer, not being able
to get my 'Australinized' licence certified nor find a certified licence
that satisfies Australian law requirements, not be able to release software
under an 'open source' licence? The approach outlined below is interesting,
but I believe it would seriously impede the adoption of the software - No
one likes to indemnify. 

Best regards, 
Chris. 

> -----Original Message-----
> From: Walter van Holst [mailto:walter.van.holst@gmail.com] 
> Sent: Thursday, 10 March 2005 2:12 AM
> To: license-discuss@opensource.org
> Subject: Question regarding a new local license approach
> 
> Ladies, gentlemen,
> 
> Considering the current calls for a reduction of the number 
> of OSI-certified licenses I would like to ask a question, 
> hopefully without fanning the current flames too much. After 
> an analysis of OSI-certified licenses such as the MPL, the 
> GPL and the BSD license, we have come to the conclusion that 
> they are not without problems and unanswered questions under 
> Dutch law.  The 'we' bit involves me and my colleagues, who 
> are all professionals in the IT-law field. None of those 
> problems involve the 'ten commandments of the OSI', but the 
> revolve around issues such as the exoneration of liability 
> (which is done in a way that is not under all circumstances 
> compatible with Dutch contract law) and whether a license 
> constitutes a licensing contract or not and if it is a 
> contract, how the parties enter aformentioned contract. None 
> of these are issues that are likely to end up to be very 
> troublesome in a Dutch court, but we will not know for sure 
> until there is some case law. All of this wouldn't be much of 
> a problem if it weren't for the fact that various 
> governmental bodies are using open source software and tend 
> to be willing to contribute to the communities involved. 
> Civil servants tend to be pretty risk-avoiding and are not 
> too keen about untested liability exonerations in licenses, 
> especially considering that the government always is a nice 
> fat target to sue for damages. In order to help them to 
> overcome internal resistance, it might be useful to take a 
> two stage approach. The first stage would be a licensing 
> contract that is as waterproof as possible under Dutch law 
> and conforming to the OSI-criteria. This should also include 
> a clause allowing the user to relicense the software under 
> certain OSI-certified licenses such as the GPL and the MPL, 
> as long as the user is willing to  indemnify the original 
> publisher from any damage claims. This would be the second stage.
> I am interested in the opinions on this approach, especially 
> from those who are calling for a reduction on the number of 
> OSI-certified licenses. Would this be considered as yet 
> another open source license or a valuable addition to the 
> current crop, as it is intended to be?
> 
> Regards,
> 
>  Walter van Holst
>