License Committee Report for May 2004
lists at opensourcelaw.biz
Thu May 5 23:25:44 UTC 2005
Russell Nelson wrote:
> Australia needs different warranty disclaimer wording. This is a huge
> nasty ball of wax. How many different warranty disclaimers are there
> in different countries??
> Title: OZPLB Licence
> ReSubmission: http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:9498:200502:ibddhmkdckpieiodmcjd
> Submission: http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:8849:200410:jneejnfcgpacdjcfbokf
> License: In the submission, as proposed. Existing license is http://nicta.com.au/ozplb_licence.cfm
> Comments: no comments on the resubmission. They addressed the
> concerns expressed in the previous submission.
> Recommend: approval
I think the addition of disclaimers hard coded into licences is not an appropriate manner of approaching the problem - potentially it will lead to one variant of each licence for each country (and see note below about claus 5 of OSD). Setting this precedent will lead to a proliferation and licence management nightmare. If legislation mandates specific formulae for warranty exclusions they should be dealt with by way of (eg optional rider).
If anything what OSI should do is:
(a) separate warranty specific wording into (either) an approved rider (approval then gets OSI into difficulties); or
(b) suggest the inclusion in each licence of generic wording which permits licensors to add additional warranties; and/or
(c) make it clear that a licence is still entitled to OSI certification if a licensor modifies it by the addition of warranties which do not affect the scope of licence.
The Trade Practices Act issue that Ian has addressed does not apply in all cases and, to the extent it does apply, affects all licences equally. As a technical point the drafting of the disclaimer will also catch legislation from other jurisdictions and may do so in a manner inconsistent with what those jurisdictions permit by way of disclaimer. If so, this would make this effectively a country specific licence (in that there exist potential licensors for whom it would be illegal to grant the licence) - in breach of item 5 of the OSD.
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