Why?

[Jan Dockx]

Thanks for all your answers, but let me go at this one by one:

1)
a) Do I understand it correctly that you _believe_ that you can be sued 
for damages if code that is distributed for free _fails_, at least in 
the States? And that a disclaimer as it is presented with most Open 
Source licenses makes this threat go away?
b) If so, is there any documented case of someone being sued for 
damages incurred from gratis code?
c) If so, is there any documented case of a case being overthrown 
because of the disclaimer?

2) An important aspect of the disclaimer seems to be a protection 
against possible patent infringement. As a single developer we are not 
able to do extensive patent research, we publish the code, and if 
anybody later claims that we broke a patent, we want to be protected.
a) Do I understand it correctly that you _believe_ that a disclaimer in 
this respect makes this threat go away?
b) If so, how? People are using software, which they found on the net, 
which they use in good trust, often without them being in a position to 
read source code or do the extensive patent research themselves. But 
the software is being used, so the damage to the patent owner is real. 
And we are not going to pay for it because of the disclaimer.
i) Do we believe that ignorant end users will be condemned in to paying 
royalties retroactively?
ii) Do we believe that an organisation like the Apache Software 
Foundation, Red Hat, IBM, Apple, Lucent is indemnified by such a clause 
(either as original authors, or as distributors)?
iii) If not so, and if so, who's paying the bill? Or have we 
constructed a giant ripp-off here that indeed is able to kill of 
software patents? (Luckily, we do not have such idiocy in Europe :-P).

Note: this sounds a lot like questions arising from the SCO, eum, case, 
but it is not. That is about copyright and ownership, not about 
patents, if I am correct.

3) I do not understand how the Lucent example relates to my question 
about the difference between a permissible license such as BSD and 
public domain. My main question here is: why are we so obsessed with 
licenses? I understand for the FSF, and the copyleft issues, but what 
are we trying to do with the permissible licenses, such as BSD, Apache, 
Mozilla? What is the difference with public domain?

On 29 Dec 2003, at 6:55h, David Presotto wrote:

> However, to be
> most useful to the rest of the company, we need to let our
> code also be mixable with proprietary stuff in the company.
> We could do lots of bookkeeping to separate what we wrote
> from what others wrote and keep two versions ove everyting,
> or we could settle on copy-center and not bother.  We did
> the latter.

I must admit that I'm not familiar with the term "copy-center". I 
presume you mean a permissive license like BSD and the like?

a) If so, you are in an excellent position to answer my question: why 
did you or Lucent feel it necessary to do more than put the code in the 
public domain? Why have you spend hours, if not days, as I understand 
from your response, debating with highly skilled people over the 
license? Which aspect of "public domain" were you not happy with?

> The first problem was that the BSD wording was inadequate for
> covering our corporate ass.  As a large company, we get sued
> a lot.  If we were making a lot of money as a result of the
> code, then we'ld just set some of it aside to pay for the
> lawsuits.  However, at least in the case of Plan 9, we don't.

b) So, you the license is a giant disclaimer for you? Correct?


4)
> Therefore, there is more disclaimer wording and an indemnification
> clause added so that we're less liable for what some redistributor
> does with or promises about our code.
a) Please confirm: you do _believe_ that Lucent might be sued for what 
a third party might do with something Lucent gave away for free (at 
least in the States)? So, if I win an Orinocco card in a lottery, and i 
use it to stick my sisters eye out, or I sell it saying that it is a 
terrabit wireless card, you _believe_ Lucent might end up in litigation 
(at least in the United States)?
b) If so, are there any documented cases (actually, this is the same as 
1b), sorry)

5)
> Finally, our lawyers wanted termination language.  If someone
> doesn't abide by the rest of the license, there has to be a
> way to revoke their rights to it.
I understand. At least, if there is something to protect. If there is a 
contract, you need a stick to beat the naughty boys or girls. But, 
again, what are you trying to protect? I don't understand this even if 
your license is a giant disclaimer.
What am i missing?

6)
> By the way, in anser to:
>
>> Are we really afraid that we will be sued for
>> damages by something we give away for free
>> (as in free beer)?
>
> the recipient may not have gotten your code for free.  Anyone
> can redistribute for money as part of something they build or
> just with better packaging and/or support.  The original
> contributors can and will be sued for anything that goes
> wrong; its the american way.
If you say so. I understand that for the patent infringement (see lower 
and above), but for damages, I think it is weird. I would expect the 
party that made money of it to get sued, and possibly convicted, but 
not the original authors that put the thing in the public domain.
Actually, that would mean that also research papers on physics or 
medicin or pharmaceuticals need a disclaimer. If the researcher made a 
mistake, or even if some third party misused the paper, the researcher 
can get sued.
Hm. Sorry, but I'm not really convinced.
> You can get sued for patent
> infringement if the combination of something you build
> and something someone else adds to it steps on a patent.
> Try giving teenagers free beer here and see what happens
> after the car accident.
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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