Legal soundness comes to open source distribution

'Bruce Perens' bruce at
Sat Aug 3 20:02:26 UTC 2002

On Sat, Aug 03, 2002 at 12:17:10PM -0700, Lawrence E. Rosen wrote:
> Bruce, are you going to respond to any of my other comments besides my
> expression of bafflement?

Sure, no problem.

> Or are you going to simply blame me for the confusion and lack of legal
> understanding on the part of *some* of the leaders of the open source
> community about whether licenses are contracts?

That is Brian Behlendorf of you are talking about. His
company offers training on Open Source licensing. HP buys it. If
you are not getting through to Brian, backing up and starting again
would be advised, because you are surely losing the rest of the

> I invite you to address directly my argument that the MPL
> (and similar licenses) is clearly, obviously, without question or doubt,
> a contract and not merely a copyright license.  

Oh, I considered this so obvious that it wasn't necessary for me to
comment upon it, and certainly I would not have disputed it. But it is
peripheral to the issue of a warranty _disclaimer_, which like a copyright
permission, does _not_ necessarily have to be in the form of a contract.

> The decision addresses a preliminary matter, specifically whether a license
> that contains an arbitration clause can be enforced against licensees.

There are many license terms that I believe would require a contract.
_Indemnification_ is one that is germane to this argument. Choice of
venue and arbitration probably require a contract too. But I'm not
convinced that a simple disclaimer of warranty requires a contract.

> Many of my clients (licensors and licensees alike)
> demand an arbitration clause in their licenses for the simple reasons of
> cost avoidance and risk reduction.  

Were I writing a proprietary software license, I would certainly ask for
indemnification, choice of venue, an arbitration clause, and anything else
that would be likely to hurt the other guy, and I would ask for them to
be expressed in the most forceful possible way - I might even require
internet registration so that I had confirmation that the licensee had
agreed. After all, that sort of license is entirely one-sided - it's written
for the copyright holder and nobody else.

If I am able to express those terms at all when pursuing Open Source, I may
not be able to express them with the greatest possible force, because they
place an undue burden on the other participants, and are not likely to be
accepted. This is simply the difference between a vendor-customer relationship
and a partnership with a community.

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