discuss: No Warranty License.

Nathan Kelley digitaleon at runbox.com
Thu Feb 27 20:05:55 UTC 2003

To Justin Chen-Wells,

>> From: Nathan Kelley <digitaleon at runbox.com>,
> From: Justin Chen-Wells <jread at semiotek.com>,

>> 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.
> You have said that this "No Warranty License" fails to comply because 
> it discriminates against people in a particular jurisdiction. Your 
> reasoning was that the laws of that region are beyond the control of 
> its inhabitants (questionable) and therefore preventing use of the 
> software under a particular legislative regime amounts to 
> discrimination against a group.

No, the laws are beyond their clear control, meaning that there isn't a 
clear path down which they could cause changes to the law to occur for 
the purposes of this license. Only a few people will be in a position 
with such a path. Will those be the end users of software with this 
license? Who knows?

> There's some merit in that, as for example we wouldn't want to accept 
> a license which said the software could not be used, or could only be 
> used, in a democracy.
> On the other hand supposing some government passes a law:
>     No citizen shall accept a software license which requires
>     publishing the source code of a derivative work.
> Would we then declare that the GPL is not OSD because it discriminates 
> against people in that legislative jurisdiction?

No, we wouldn't. But there is a difference between your scenario and 
that of the No Warranty License: your scenario says "the user can't 
accept the license because their jurisdiction say they can't", whereas 
the No Warranty License says "the user CAN accept the license, but they 
don't get any of the OSD-guaranteed rights if their jurisdiction 
doesn't allow limited liability".

The former is a jurisdiction effectively imposing a ban on Open Source 
licenses as far as the OSD is concerned; the latter is a license 
effectively imposing a ban on jurisdictions as far as No Limited 
Liability goes. Only the latter is within our ability to prevent. I say 
that we should, on the basis of the violations of Item 5 and Item 7 
that I identified.

> In and of itself I don't think we want to reject a license merely 
> because of an incompatibility between a license and a law that results 
> in the inability of people subject to that law to accept that license.

I agree wholeheartedly, but that is not the case with this license.

Cheers, Nathan.

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