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 &
> warranties.

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 
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
> rigorous."

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
> public?

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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