Generic Simple License

Justin Wells jread at semiotek.com
Tue May 23 22:35:47 UTC 2000


On Tue, May 23, 2000 at 04:23:03PM -0500, Forrest J. Cavalier III wrote:
> > Because disclaiming implicit warranties and all liabilities has to be 
> > done explicitly and prominently. If the disclaimers are removed, then 
> > it is neither explicit nor prominent--so the disclaimers are probably
> > unenforceable.
> 
> So what changes if the second party removes the disclaimers
> despite the statement to propagate them?  Same loss and lawsuit.

My weak and non-authoritative understanding is this:

First, the 3rd parties copy is now totally illegal due to the 2nd
party infringing on your copyright and violating your license by
removing the disclaimer. What the 3rd party has is stolen property, and
it's not clear you have any obligation to support stolen property.

Second, you did your best to warn the 3rd party that the risk was theirs, 
but the 2nd party thwarted you by breaking the law. So it's not your fault
that the third party missed the disclaimers--you followed the law--it's
the fault of the 2nd party. This is different from the case where you did
nothing to ensure that the disclaimers would be seen by the 3rd party.


> How can the second party create more liability for the authors?

They can't create liability for you. You have all the liability 
initially. They can only reduce your liability by breaking the law, 
adding their own warranties, etc. 

Most software licenses insist that the recipient accept all the liability,
which is a way of transferring it from you to them. If this transfer is 
not made, then the liability for your software remains with you.


> What is the remedy for the authors?  Sue the second party?  I
> don't think so, but justice often doesn't follow "common sense."

Now you're over my head. I have no idea. And I'm not really sure of 
the things I said above either--I'm just repeating to you what I've 
understood from the documents on software licensing I've read. 

Those documents dealt only with the ins and outs on what you should
put in your license, with some justifications as to why.

What nasty things might happen to someone in court as a consequence 
of the license issues, I don't know :-)


> I know there are a handful of legal theories of liability,
> so I'd like to know more about the underpinnings here.

Me too :-)

In my license I just copied all the disclaimers as boiler plate from 
a document on software licensing.


> And what about releasing it to the public domain?  Where is
> the liability then?  Authors would say "Here is a program in
> the public domain, it comes with no warranty."  Same second
> party distribution.  Same third party loss and lawsuit?
> Who's liable?

I'm not sure if public domain helps you. I would guess that you are 
fully liable for public domain software. For example, you shouldn't be
able to dodge the liability for the damage your computer virus caused
by claiming that the virus is "public domain software".

Similarly if you posted some software claiming that it would improve 
people's computers, when really, because of your negligence, your 
program destroys computers, I would guess you're liable for that, 
whether it's public domain or not. The only difference from the virus
case would be you didn't intend the damange, so it would be negligence
rather than something more malicious.

However I have no idea--aren't some government agencies required to 
make their software public domain? Does that mean they're liable if 
someone uses it and suffers some damage? It does seem like you ought 
to be able to make some disclaimers stick on public domain software.

I'd like to here an informed legal opinion on this, since it's 
interesting.


> I am not a lawyer either.  But since the lawyers find a way
> to keep law in our lives, we non-lawyers are forced to
> discuss law.

Yes :-) 

Justin




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