Subject: Re: EROS and liability
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Wed, 30 Jun 1999 11:13:05 +0900 (JST)

>>>>> "Frank" == Frank Hecker <hecker@netscape.com> writes:

    >> Secondly, I still just don't see any particular free software
    >> aspect to this.  I think vendors of proprietary RTOS's
    >> distributed in source code form have exactly the same problem.

    Frank> I'd agree.  Actually, any proprietary product that has a
    Frank> source component would have this problem (e.g., a web-based
    Frank> ecommerce system based on HTML templates and Perl scripts).

No.  If it's proprietary, we can assume you can't modify it, can't
redistribute it.

But suppose Jonathan's shop contracts to adapt EROS to "Pacemaker".
They supply the code under a dual license.

Now, "Pacemaker II" is due out.  The downstream manufacturer _thinks_
they know what they're doing, so they take the free-licensed code and
make similar modifications to EROS, perhaps using a third party
consultant even.

The different environment uncovers a bug in the core code of EROS,
which the manufacturer has a proprietary license and support contract
for, but that code is (provably, eg, it wasn't linked in) never
invoked in Pacemaker I, so the bug slipped through.

What is Jonathan's liability?

I agree with the common sense opinion that their liability is limited
to fixing the bug in EROS; the manufacturer chose to use the free
version; it must self-insure.

But ... I don't know what a court would say, even if the license and
support contract had explicit language limiting coverage to Pacemaker
I, and the free license had the usual "no warranty" language in it.  I 
strongly suspect that the battle would be long and bloody, and not
very good for the company's PR.  Even if the court would rule for
EROS, it might be worth paying off the plaintiff _before_ she appears
on "Good Morning America" saying "a bug in EROS killed my husband."

It might very well be useful to add language indicating that certain
applications ("see schedule A") are not covered by the license
(despite the "no consequential damages and fitness for use" clauses,
which ought to cover this).  Of course, then it is no longer free.
But I think most businesses would consider that preferable to risking
corporate suicide via liability award.

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