Legal soundness comes to open source distribution

Russell Nelson nelson at
Sat Aug 3 13:02:18 UTC 2002

Brian Behlendorf writes:
 > On Fri, 2 Aug 2002, Russell Nelson wrote:
 > > From what various legal scholars
 > > tell me, a non-contractual license (such as the GPL) cannot cause you
 > > to give up your warranty rights.
 > Is there a reference of some sort for this?  It's about the only solid
 > reason I see to need to go beyond copyright law.  Is there any court
 > precedent that suggests this?  A case where someone was given something
 > for free, with warranty disclaimed in a copyright license, and the court
 > decided that warranty disclaimer was invalid?

Well, see, that's the problem.  You can protect critical variables
with a spin-lock.  If you fail to, your kernel crashes.  I don't want
the open source movement to crash.  When the case above happens, Open
Source will crash.  It will be too late.

 > Are there any other reasons to consider allowing the OSD to cover
 > contracts?  My sense is that keeping it limited to copyright licenses has
 > been key to its success to this point.

Mine, too.  I'm not at all happy about having to go to click-wrap.  It 
opens a whole can of worms.  But I'm not happy about taking the risk
of having nobody want to lose their house because they wrote free
software.  Small risk, maybe, but it has big consequences.

Maybe click-wrap creates more problems than it solves?  We need to ask
the question rather than assuming the answer, as some would have us do.

 > > Agreed.  That's why I think we need to amend the OSD so that it
 > > clearly states that a license must not restrict use, modification, or
 > > redistribution of the software.
 > The OSD, by applying to copyright licenses, already allows restrictions on
 > redistribution.  It'd be kinda toothless if it didn't...

Yes, yes.  Not redistribution.  But definitely use and modification.
If you could put restrictions on modification, then BitKeeper is open
source.  And I don't think anybody besides Larry McVoy wants (wantED
being a better term) that.

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