discuss: No Warranty License.

[Nathan Kelley]

To OSI License Discussion subscribers,

>> From: Anonymous Poster,
> From: David Johnson <david at usermode.org>,

I have concluded that the "No Warranty License" does not conform to the 
Open Source Definition. The offending clause is as follows:

>> If the following disclaimer of warranty and liability is not valid due
>> to the laws in a jurisdiction then NO RIGHTS ARE GRANTED in that
>> jurisdiction without the express written permission of the copyright
>> holder.

This violates Item 5 of the OSD, which states that "The license must 
not discriminate against any person or group of persons.". By not 
granting equal rights to users, distributors and open-source developers 
based on factors beyond their clear control (the laws of their 
jurisdiction), they are being discriminated against.

This also violates Item 7 of the OSD, which states that "The rights 
attached to the program must apply to all to whom the program is 
redistributed without the need for execution of an additional license 
by those parties.". Users, distributors and open-source developers in 
affected jurisdictions cannot exercise the rights they are guaranteed 
under the OSD for OSD-compliant licenses without obtaining additional 
permission ("license") from the author.

Further, the only way to effectively enforce this license is to prevent 
users in the affected jurisdictions from obtaining or using the 
software, since as I understand it (IANAL, TINLA, CMIW), the wording of 
a license cannot override the laws of a jurisdiction, nor physically 
prevent someone from filing a suit on those laws; it might put you in a 
more favorable position (that, if assent could be proven, the user 
assented to the terms and has now violated that; what legal 
significance this would have is questionable), but that's all.

Since the offending clause forms the only tangible difference between 
the No Warranty License and the BSD License, I recommend that the No 
Warranty License be rejected.

>> Basically, I want a BSD license but I don't want some chuckle-head in 
>> a
>> country where warranty disclaimers aren't valid trying to start a 
>> legal
>> fuss. The only possible point that could be raised is point #5 of the
>> open source definition. However, I think calling this discrimination
>> against a person or group is a bit of a stretch.

Unfortunately, it's not a stretch at all, for the reasons outlined 
above.

The discussion over the past half-year has included a lot of 
suggestions of ways to get small open-source developers out of the very 
real threat that an enterprise-level suit could ruin their lives for 
essentially contributing 'freely' to the world. I think there is some 
consensus that as laws in a number of countries currently stand, this 
is problematic at best and impossible at worst, without changes to the 
relevant Acts.

So far, what has saved open-source developers has I believe had little 
to do with legalities; it benefits no-one, there is not likely to be 
any cost recovery, it only delays the fixing of the actual technical 
problems (where these exist), and it makes for really, really bad PR 
for those doing the suing at a time when it seems like the 'little 
guys' are readily being squashed flat by the 'big guys' for the sake of 
the latters' own business and political interests.

I agree that steps should be taken to protect authors, but this 
approach, like the others we have seen that attempt to stop any suit in 
its tracks, is doomed to failure. It comes down to using a license to 
attempt to make authors untouchable, a position that any judge will 
simply not accept.

> But there's a bigger issue. The author doesn't want some 
> "chuckle-head" suing him, yet what's to prevent some chuckle-head 
> author from suing users under the same clause? What if I don't know if 
> this warranty is valid in my jurisdiction, and give the software to a 
> friend? Will I get sued because I didn't receive the right to 
> distribute the software?

How will the author know you re-distributed it to your friend, since 
there is no requirement to advise the author? And unless the author has 
logs from your workstation or ISP at the time (both very hard to 
procure), how will they prove that you exercised rights of distribution 
that were not granted to you by the license and that are normally 
forbidden? And for what reason could they sue you? For potential 
damages from as-yet unfiled suits from as-yet unknown users?

> In addition, the warranty covers use of the software, yet I can obtain 
> the right to use the software without having to agree to the license.

And here you hit the nail on the head; rights granted to you by law 
which cannot be overridden by a license except by the licensor granting 
rights to the licensee. So in such jurisdictions as yours, you can get 
obtain program and use it, but not do other things such as 
re-distribute it or make derivatives. Does this hurt you? In a 
philosophical sense, yes, but in a practical sense, probably not. It 
does hurt the author though, and since we know that software authors 
are in principle not masochistic...

Cheers, Nathan.

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