discuss: No Warranty License.
digitaleon at runbox.com
Thu Feb 27 12:12:32 UTC 2003
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
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
>> country where warranty disclaimers aren't valid trying to start a
>> 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
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
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...
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