Legal soundness comes to open source distribution

Bruce Perens bruce at
Sat Aug 3 21:20:18 UTC 2002

Bruce Perens:
> 1. Is a simple warranty disclaimer that does not require agreement
>    adequate?

From: "Rod Dixon" <rod at>
> I do think the correct answer to the first question is going to
> be yes. In response to question #1, I would ask another question:
> aside from ease on the license drafter, why would you want to impose
> terms (a disclaimer is still a license term, albiet a negation) under
> conditions that make it unclear to both parties whether the terms have
> been agreed to?

This is mostly an issue of practicality - and practicality is what
drives many OSD questions.

Debian, for example, has some 8000 packages, and a typical system
will have 1000 to 3000 of them, some people install the whole kitchen
sink which is probably around 6000 packages once package conflicts
are resolved.

The packages are produced by some 800 different package maintainers
who are not employees of Debian and are not under the orders of any
corporation. Of course there are many different owners for the software
that is packaged.  It's not clear that Debian is the warrantor, rather
than the package maintainers and the copyright holders. There are at
least 100 variations on the licenses, both different license versions and
different entities offering the same licenses. If even one one-hundredth
of the packages required click-wrap, it would not be practical to present
them all.

Imagine clicking through 30 licenses during an install. There would be no
reasonable expectation that the installer had actually read the text of all
of those licenses, which defeats the purpose of click-wrap. The same issue
comes up in other venues, such as download sites, and applies to all other
distributions, Red Hat, and so on, although most distributions are
smaller than Debian and may have employees doing the packaging.

The practical alternative is to present _once_ that there are licenses,
that they in general disclaim warranties and that thus you should have
no expectation of warranty, where you can find them, and the fact that
since you have source you can perform your own due diligence.

> This seems to run counter to the purpose of drafting terms.

Only if you are taking a vendor-centric view. Vendor-centric licenses
are drawn with maximum possible terms to protect the vendor. Open Source
licenses are drawn to protect the vendor as much as possible while still
being practical and fair to redistribute and deploy throughout a broad
community of users and derivative developers who are not motivated to
accept an odious license. That means that we deliberately make some things
easy - for example the act of copying and redistributing a software
distribution, and installing and using that distribution. We may reduce the
software producer's capability to defend themselves, by a reasonable amount,
in order to achieve those goals.


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