discuss: No Warranty License.

Fri Feb 28 00:42:00 UTC 2003

One way around this apparent conundrum is adopt the suggestion in OSD. Point
out the restriction that may exist, but do not actually incorporate the
tersm of the restriction in your license.

5. No Discrimination Against Persons or Groups
The license must not discriminate against any person or group of persons.

  Rationale: In order to get the maximum benefit from the process, the
maximum diversity of persons and groups should be equally eligible to
contribute to open sources. Therefore we forbid any open-source license from
locking anybody out of the process.

  Some countries, including the United States, have export restrictions for
certain types of software. An OSD-conformant license may warn licensees of
applicable restrictions and remind them that they are obliged to obey the
law; however, it may not incorporate such restrictions itself.

Rod
rod at cyberspaces.org
http://www.cyberspaces.org/dixon/
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132

----- Original Message -----
From: "Justin Chen-Wells" <jread at semiotek.com>
To: "Nathan Kelley" <digitaleon at runbox.com>
Cc: "OSI License Discussion" <license-discuss at opensource.org>
Sent: Thursday, February 27, 2003 8:53 AM
Subject: Re: discuss: No Warranty License.

:
: You have to be careful with this:
:
:     o Open source developers ought to be able to limit their
:       liability, otherwise many firms and individuals may be
:       unwilling or unable to contribute code
:
:     o You risk binding the OSD to the union of the laws of every
:       jurisdiction on earth, no matter how crazy the laws may be
:
: The second point requires explanation. 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.
:
: 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?
:
: 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.
:
: Justin
:
:
: On Thu, Feb 27, 2003 at 11:12:32PM +1100, Nathan Kelley wrote:
: > 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.
: >
: > --
: > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
: --
: license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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