Subject: Re: EROS license
Date: Mon, 28 Jun 1999 21:37:51 -0400

>A typical free software license also says something along the lines of
>``you didn't pay for this, so you assume all risk.''


In an ideal world this would be relevant to the question of liability.  The sad
fact is that "no warranty" clauses have an unfortunate way of getting discarded
when serious harm has occurred.  The law and the judicial practice are two
different things, and in all honesty I have to say that this is proper: the
relationship between buyer and seller is generally not a relationship of equals.
The buyer needs the function, the seller is the sole provider, and the seller
can therefore say "take it or leave it."  Under these conditions the courts are
quite right to bend in favor of protecting the buyer.

Once the "no warranty" thing gets chucked, the plaintiff is then free to argue
according to which victim (er, um, I mean defendant) has the deepest pockets.
If I were the plaintiff's lawyer, and I saw an EROS organization with any useful
amount of money, I'ld argue at least that "EROS Central" played a contributory
role and is therefore liable in some degree.  The fact that I'ld be killing the
goose is not relevant; counsel has an ethical and legal obligation to get the
best possible outcome for their client regardless of whether the good of society
is satisfied.

Finally, you are neglecting the most important issue.  The point is not that I
want to duck liability.  The point is that I want to be able to *assume*
liability in a controlled way.

Jonathan S. Shapiro, Ph. D.
IBM T.J. Watson Research Center
Phone: +1 914 784 7085  (Tieline: 863)
Fax: +1 914 784 7595