Legal soundness comes to open source distribution
Lawrence E. Rosen
lrosen at rosenlaw.com
Sat Aug 3 16:25:17 UTC 2002
> 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.
> On Sat, 3 Aug 2002, Brian Behlendorf wrote:
> 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.
> > 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...
I am baffled by everyone's confusion and philosophical rantings. Almost
every license in OSI's approved list is much more than a copyright
The MPL (and almost all similar licenses), for example, contains a
patent grant that specifically applies to "use" and "practice" and it
disclaims application of those patents to "the combination of the
Original Code with other software or devices." It contains a defensive
suspension provision relating to patent litigation that applies to users
of the software as much as to distributors. It contains a limitation of
liability clause (not related to the warranty provision) that limits
liability for damages of any sort. It contains restrictions on U.S.
government rights. It contains a comprehensive set of miscellaneous
provisions that govern contract interpretation, governing law,
jurisdiction and venue, attorneys' fees, even a disclaimer of the United
Nations Convention on Contracts (!) for the International Sale of Goods.
What makes anyone think that this *CONTRACT* will be interpreted by the
courts strictly under copyright law?
Now, what if a distributor under the MPL insists that *users* of his
software indicate clearly their assent to this contract? Should the OSD
prevent such manifestations of assent?
This entire discussion of click-wrap has gotten so politicized that you
are confusing your own lawyers with your opinions.
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