discuss: No Warranty License.

[Don Jarrell]

I believe Nathan has hit upon a problem not in Open
Source but in our language and society as we have
accepted distortion of the word "discrimination".
Purely it only means 'to distinguish or delineate'
(IANW), but we tend to load the connotation with
'unreasonably' or 'illegally'. In looking at this
discussion, I believe we are vacillating in the back
of our minds between the denotation and connotation,
as is done in other contexts.

I believe there is nothing wrong in saying that a
license (or even the OSD) 'Discriminates' conditions
and situations - as it must to accomplish some effect.
Whether that discrimination is unreasonable or driven
by an illicit motive is a separate question.


Cheers.     dj

*****************************************************
Don B Jarrell           don at digitalthinkinginc.com
                        512 266 7126   home-office
Digital Thinking Inc.   972 467 6793          cell
*****************************************************



> -----Original Message-----
> From: Nathan Kelley [mailto:digitaleon at runbox.com]
> Sent: Friday, February 28, 2003 4:53 AM
> To: Justin Chen-Wells; Rod Dixon J.D. LL.M.
> Cc: OSI License Discussion
> Subject: Re: discuss: No Warranty License.
>
>
> 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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