discuss: No Warranty License.

[Justin Chen-Wells]

On Fri, Feb 28, 2003 at 07:05:55AM +1100, Nathan Kelley wrote:

> > 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?

OK. I can accept this, I just wanted to raise the point.

  
> > 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".

So, let's take one more step along this slippery slope: What about a 
license which says:

   You must read and understand this license before accepting it.

Discrimination against the illiterate, the blind, the mentally 
challenged, and, for that matter, anyone who can't read English?

Text like that is common enough in licenses--perhaps in some that
have been approved already? It seems like you could hand wave it away.

But if you wave away that you might wave away this:

   To use this software you must be legally capable of accepting 
   this agreement including all of the following terms:
   .... This software is provided "AS IS" with NO WARRANTY.

We're almost back to where we started. This isn't as explicit as 
the "NO WARRANTY" license but it amounts ot the same thing--someone 
who is in a jurisdiction where warranty disclaimers are invalid 
would be not be "legally capable" of accepting this agreement. 

Or maybe you could just write this:

   If any part of this license is ruled invalid then the entire 
   license shall be considered null and void. 

An anti-severability clause may be a dumb idea as it's just plain 
dangerous. But the license doesn't purport to discriminate against
anyone at all--but in jurisdictions where the warranty disclaimer 
is ruled invalid it's the same thing. 


> 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.

Perhaps the principle is satisfied by one of the less direct means 
described above? With no explicit ban in the license you could 
consider that it is not the _license_ which is discriminating 
against jurisdictions, but jurisdictions which are discriminating
against licenses. 


> > 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.

Perhaps. And I haven't studied that license or this very carefully, I 
just wanted to raise a few issues before we set a bad precedent. 

Personally I think the original author might get more mileage out of
investigating a "choice of law" term such as in the MPL--that would 
likely cover the legal bases well enough for practical purposes. 

Justin

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