a proposed change to the OSD
Mahesh T Pai
paivakil at vsnl.net
Sun Nov 3 17:37:44 UTC 2002
Nathan Kelley wrote:
> OK. Let me see if I have this issue correct:
> (1) Many open-source licenses are essentially Copyright Notices
Slight difference in my approach. They are more copyright *grants*,
no mere notices.
> These mainly deal with
> modification, re-distribution, and disclaiming liability &
Actually, a single document, the 'license' does two things, first, the
copyright part, second liabilities & warranties.
> (2) The consensus among legal experts here is that a Copyright
> Notice is not sufficient for disclaiming liabilities & warranties;
Of course not.
> for that, a contract must be used. As usual, to form a valid
No. The difference is very, very, very subtle. ( I said, NO )
> contract, the parties involved both have to agree to the contract
> and a consideration has to pass between the two.
Once again, NO NO NO.
It is sufficient that the person who puts the s/w out (the offeror) to
make clear his intentions to disclaim liability. Sometimes, (as in
the US of A, as I understand it), there is no use even if the
liability is disclaimed; coz. statute imposes liability. That is why,
the GNU GPL says, "except to the extent permitted by law, ... bla
In other jurisdictions, the disclaimer acts as the terms and
conditions under which the offeror makes the offer. Absense of
consideration is another circumstances in which the courts are likely
to *uphold* disclaimers.
The 'click wrap' is only one of several means of ensuring that the
oferee / receipient knows the terms under which the s/w is offered.
In fact, several, the statute specifies, that in the absence of
contrary stipulations between the parties, liability is to be
presumed. Once again, it is for the offeror to ensure that the terms
under which his s/w is made available are *properly* communicated
(that is, driven into the users' heads).
> (3) In view of the fact that many open-source packages are also
> gratis, the majority opinion is that consideration in this case is
> the act of downloading or otherwise obtaining the software, as
> opposed to receiving monies.
I do not hold this view; I do not about others.
> Making products available gratis isn't going to help; after all,
> Internet Explorer is gratis, but many organisations use it as an
Precisely, but making the source code available, and telling the user
what exactly it does along with putting the onus of ensuring the
burden of ensuring that the sources meet the user's requirements on
the user himself will help.
In fact, with due respects to the courts and the opinion of US
experts, I feel that the real, unspoken reasoning behind Specht V.
Netscape (I think you are referring to this decision earlier), is that
the s/w from Netscape did something it was not supposed and expected
to do. That being so, I simply unable to view the decision in Specht
as being justified by the reasoning given therein. ( in common
english, this means that both the decision and the reasoning are
correct, but the reasoning does not imply the conclusion arrived at.
In law, this is really important, coz. courts are not supposed to
adjudicate or reason on something which is not before them) That being
so, no real purpose would be served by blindly following that decision.
> essential part of their desktop infrastructure. If there was a
> major defect in Internet Explorer that caused any particular
> enterprise customer revenue loss, would this really stop them from
> going to court?
You are entitled to IE if, and only if, you have a licensed copy of
any of the flavours of Microsoft's Windows operating system. You paid
for that. Hence, the decision would be based on the fact that you
paid for your copy of MS win; and *not* coz. the court holds a gratis
s/w liable for damages caused by its use.
> "The time is coming when you won't be able to distribute software
> unless you have presented the license to the user and their assent
> is necessary to access the software. Even free software. Our
> industry is maturing and we need to be more legally careful and
Yes, but, as one reads the history of what is called 'product
liability' one finds that the real reason the courts, and the
legislatures developed the concept is that the so called contract was
between un-equals, and the producer was in a superior position, in
terms of economic power and skill / technology - coz. the design,
manufacutre and the specifications of the product was usually a
secret. Hence, there was no real 'bargain' for purpose of fair contract.
In case of OSS, we need to emphasise that the bargain is between
equals, economically, and to some extent, technically. Technically
coz the sources are available, and the user gets the right to modify
them. Again, most licenses, like the GPL permit the distriutor to
charge specifically for providing warranty. If the OSS community
stresses these issues in their licenses, more specifically, in the
disclaimer clauses in the licenses, in due courses, the courts will
take care of the OSS community's interests; *even* if the statute goes
against us (on a/c of undemocratic processess, like lobbying).
> My question, though: who is UCITA truly designed to serve? The
Another symptom of the rot, another face of the same danger faced by
the public, which goes under the pseudonym, "trusted computing" means
those millions of computers in those several offices, homes and
schools around the globe, which can be trusted to force the users to
buy the software (not necessarily computer programs) *and* hardware
from the 'trustworthless' few. T
> Cheers, Nathan.
Nothing to cheer about that.
Mahesh T Pai.
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