FW: For Approval: Non-Profit OSL 3.0

[Lawrence Rosen]

NOSL 3.0 doesn't discriminate among licensees any more than OSL 3.0 does.
But this much is true: The NOSL 3.0 license itself cannot be used by any
*Licensor* who is unable make the promise of s. 17(a), just as the original
OSL 3.0 cannot be used by any *Licensor* who is unable to make the promise
of the warranty of provenance in s. 7.

The warranty of provenance of s. 7 and the omission of "direct" damages in
the limitation of liability s. 8 of OSL 3.0 have proven to be stumbling
blocks for some non-profit licensors because they have no revenue stream to
pay for the diligent review and insurance that such promises would justify.
And yet, especially following the SCO lawsuit that made us all recognize the
threat of allegations of bad provenance, the promises we make about our open
source software reassure customers that we're not passing off defective or
misappropriated software. 

Major non-profit open source organizations like IETF (or Apache Software
Foundation, or the Linux Foundation, or the Eclipse Foundation, or the
Python Foundation, or the Open Software Alliance, etc.), are definitely NOT
sloppy in their work. They know their contributors, often obtaining
contributor agreements or written statements of donation from individuals
and companies before contributions are accepted. These organizations keep
excellent audit trails of derivative and collective works created during
project development. Anyone who takes their software should be quite
comfortable with their licensed works, even in the absence of a warranty of
provenance or an implied promise to be responsible for direct damages.

IETF (like those other non-profit organizations) simply can't afford for
economic reasons to offer a warranty of provenance or to be liable for
direct damages. IETF wants to be able to use OSL 3.0 otherwise. I want to
help make that possible. That's why I wrote NOSL 3.0 for them.

On the other hand, commercial companies (or to be more precise, companies
that obtain revenue from the software being licensed or from support and
services related thereto) can afford to promise diligence and reasonable
care. Almost all already do so, at least to their paying customers. Yet some
commercial companies have fallen into the habit of using licenses that
simply say "AS IS" and "NO WARRANTY" so as to escape all liability. I've
never believed that to be a fair policy for our customers and so my licenses
don't do that. 

What I personally believe about proper commercial behavior, of course,
should not be given extra weight here; this is a big world, with lots of
different views of and laws covering such things. In order to keep my own
personality and ownership rights out of the picture, s. 16 of OSL 3.0 (and
NOSL 3.0 too, for that matter) already allows you to make your own licenses
based upon those terms from my license that meet your own needs. If anyone
disagrees with my attempt to require commercial licensors to stand behind
their open source works in these very limited ways, you are free to create
your own version of my license. Just don't call it "OSL" or anything
confusingly similar. 

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)

> -----Original Message-----
> From: David Woolley [mailto:forums at david-woolley.me.uk]
> Sent: Monday, August 06, 2007 11:51 PM
> To: 'License Discuss'
> Subject: Re: For Approval: Non-Profit OSL 3.0
> 
> Lawrence Rosen wrote:
> 
> > I'll try to answer that question rather than put the burden on IETF's
> > attorney to do so. That requirement was made because (in my opinion)
> open
> > source customers should expect their *commercial* (i.e., for-profit)
> > software suppliers to offer a warranty of provenance and to accept
> liability
> > for direct damages.
> 
> I'd still say it was discrimination against a field of endeavour.  I
> think you should strike it and include explanatory text, outside of the
> formal, legal, requirements, explaining the benefits of making the
> warranty (i.e. people are more likely to use the software).