Legal soundness comes to open source distribution

Mahesh T Pai paivakil at
Mon Aug 5 10:10:04 UTC 2002

 David Johnson wrote:

>I would hesitate to limit liability on the basis of Open Sourcedness. Rather, 
>I would base it on the commercial nature of software ....
>My rationale is that an insurance burden upon non-commercial developers is so 
>great that it would stop Open Source development outright, .... 
Seems we are saying same thing in different words.  I will try to make
myself more clear.

Courts do not distinguish between "commercial" and "non-commercial".
 Instead, they look at two issues to fix liability.  First, whether
consideration (that is, payment, but not necessarily of monetary value)
passes between parties. Second, whether there is "privity" or a direct
relationship between the parties.

Of course, there are several exceptions to both these rules.  One such
exception is the principle of injurious reliance or what is called "a
promised donation".  If X promises to do something to Y gratis, and
trusting X, Y incurs an expense or suffers a loss due to reliance on X's
promise, X is bound to perform the promise made to Y.  This is the
principle of injurious reliance.  

The point is, if you equate a person who creates open source software,
with others who create non-open source software (what you call
"commercial distributors"), *and* then want to make the Open Source guy
liable for a loss attributable to use of his software, *my case* is that
the exceptions will not apply.  The person seeking to fasten liability
will have to prove both "consideration" and "privity".  Often, he will
also have to prove that the defendant (the OSS distributor) actually
knew the purpose to which the software was to be used by the user.

Of course, if the OSS guy took money from the user, he will be liable
anyway, and "click through" disclaimers will not help.  And, even if no
money was taken at all, like Specth v. Netscape, where the software does
something (considered by the user to be) injurious without the user's
permission, it will be difficult to fend off liability, on the principle
of injurious reliance.

Mahesh T. Pai.

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