discuss: No Warranty License.

[Nathan Kelley]

To Justin Chen-Wells, Rod Dixon J.D. LL.M. and OSI License Discussion 
subscribers,

>>>> From: Justin Chen-Wells <jread at semiotek.com>,
>>> From: Nathan Kelley <digitaleon at runbox.com>,
>> From: Justin Chen-Wells <jread at semiotek.com>,
> From: Rod Dixon J.D. LL.M. <rdixon at cyberspaces.org>,

>>>> 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?

That only holds if that statement is (a) completely inflexible, and (b) 
you interpret it literally instead of on the basis of its intent. On 
that basis, none of those groups would be legally able to do things 
like buy houses, gain employment, open bank accounts, obtain passports, 
or other such activities... but we know that they do every day.

If we really wanted to, we could probably find discrimination in every 
sentence of every open-source license on file. But what's the point? 
We're interested in the source code being open, and attempting to 
compensate for every possible discrimination would get in the way of 
that. That's a truism universally, not just for open source.

Those that are blind aren't allowed to drive; that's discriminatory, 
but which do you value more: no discrimination, or safe roads? To have 
both would be nice, and with technological and medical improvements, we 
might be able to have both, but that's in the future. For now, you need 
to choose.

Those in the proprietary software business aren't allowed to re-use 
code from any software licensed under any OSD-compliant license in 
their proprietary products without conforming to the conditions of the 
license, making their product nonproprietary; that's discriminatory, 
but which do you value more: no discrimination, or open-source 
software? To have both would be nice, but until the way the world works 
changes, we're stuck with that choice.

Perhaps it's unfair. But life's unfair. What we can do is make it less 
unfair without compromising ourselves or our goals. Accepting or 
rejecting licenses based on whether they match the spirit of the OSD as 
well as the OSD criteria is one such method, including the No Warranty 
License.

>> 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.

Such a statement would be superfluous; if you're not legally capable of 
accepting the agreement, then whether or not the agreement says so 
doesn't make any difference. A license that had such a clause as this 
probably wouldn't make it onto the approved list, since superfluous 
statements usually only serve to cause trouble.

If you can't accept that agreement, then you get what rights you would 
have had without it; in some jurisdictions that means you can use the 
software even without the license; in others, it may mean you have all 
the OSD-granted rights. Imagine that, not accepting a license agreement 
and getting MORE rights than you would have had!

Unfortunately, most software doesn't give you the option; you click 
'Disagree', the software calls an exit(), and you're landed back on 
your desktop without the chance to use the software even if you have 
every legal right to do so without accepting the license. In this way 
licenses tend to strong-arm themselves into being agreed to.

Now if it came to court, not only could the user claim that they were 
denied their legal rights to use the software even without a license 
(assuming they're in a jurisdiction that has such a right), but the 
offending clause would likely be ruled invalid. You saw this too, since 
you wrote:

>> 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.

I agree with your comments on this type of clause; any license with 
such a clause in it wouldn't get onto the approved list, either. After 
all, if the license is ruled invalid, the damage to those open-source 
developers involved with it could be immeasurable.

There are lots of clauses like this that can get you and everyone 
around you into trouble. And there are lots of licenses that don't get 
OSI certification. The two are often intertwined. The bottom line is 
that there is always the possibility of license terms being 
incompatible with the laws of some jurisdictions; this is unfortunate, 
but I believe there is a consensus that that should be because some 
jurisdictions don't follow what is generally considered internationally 
to be 'the rule', rather than because a license, due to its clauses, 
goes looking for reasons to be incompatible with some jurisdictions.

> 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 terms of the restriction in your license.

Exactly! This is what I meant when I wrote:

>>> 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.

Cheers, Nathan.

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