Legal soundness comes to open source distribution

Michael St . Hippolyte mash at
Sat Aug 3 15:28:22 UTC 2002

On 2002.08.03 04:20 Brian Behlendorf wrote:
> 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?  This is a pretty big delta
> to current understanding, so if a change as large as expanding the OSD to
> cover contracts is based upon this, we need more than hearsay.
> 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.

One possible approach would be to separate the contract and the license.
Warranty disclaimers seem to me to generally have nothing to do with the
other provisions in a license.  Perhaps the open source community could
devise a standard open source contract with a comprehensive warranty
disclaimer covering all open source software in a distribution.  Then, if
the protection of click-wrapped contract is needed, that contract could be
used, and open source licenses don't have to become contracts.  Another
benefit would be a single click for an entire distribution, no matter how
many different authors and licenses it has.

Of course this is a assuming a standard warranty disclaimer could be
written which would make everybody happy.


Michael St. Hippolyte
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