Question regarding a new local license approach

Walter van Holst walter.van.holst at
Wed Mar 9 15:11:45 UTC 2005

Ladies, gentlemen,

Considering the current calls for a reduction of the number of
OSI-certified licenses I would like to ask a question, hopefully
without fanning the current flames too much. After an analysis of
OSI-certified licenses such as the MPL, the GPL and the BSD license,
we have come to the conclusion that they are not without problems and
unanswered questions under Dutch law.  The 'we' bit involves me and my
colleagues, who are all professionals in the IT-law field. None of
those problems involve the 'ten commandments of the OSI', but the
revolve around issues such as the exoneration of liability (which is
done in a way that is not under all circumstances compatible with
Dutch contract law) and whether a license constitutes a licensing
contract or not and if it is a contract, how the parties enter
aformentioned contract. None of these are issues that are likely to
end up to be very troublesome in a Dutch court, but we will not know
for sure until there is some case law. All of this wouldn't be much of
a problem if it weren't for the fact that various governmental bodies
are using open source software and tend to be willing to contribute to
the communities involved. Civil servants tend to be pretty
risk-avoiding and are not too keen about untested liability
exonerations in licenses, especially considering that the government
always is a nice fat target to sue for damages. In order to help them
to overcome internal resistance, it might be useful to take a two
stage approach. The first stage would be a licensing contract that is
as waterproof as possible under Dutch law and conforming to the
OSI-criteria. This should also include a clause allowing the user to
relicense the software under certain OSI-certified licenses such as
the GPL and the MPL, as long as the user is willing to  indemnify the
original publisher from any damage claims. This would be the second
I am interested in the opinions on this approach, especially from
those who are calling for a reduction on the number of OSI-certified
licenses. Would this be considered as yet another open source license
or a valuable addition to the current crop, as it is intended to be?


 Walter van Holst

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