Followup on Exhibit B licences

[Marc Whipple]

-----Original Message-----
From: Russ Nelson [mailto:nelson at crynwr.com] 
Sent: Wednesday, March 07, 2007 3:29 PM
To: license-discuss at opensource.org
Subject: Re: Followup on Exhibit B licences

>Okay, but I caution you against calling your software "Open Source" as
SugarCRM does.  That creates a reliance defense for redistributors to
say "If you call your software Open Source then you are claiming that
your license complies with the Open Source Definition, so we are free
to do anything the Open Source Definition allows."  If you claim "Open
Source", you are in effect incorporating the Open Source Definition as
an appendix of your license.  That may result in a legal liability
that exceeds the benefit of claiming that your software is Open Source.

[Marc Whipple] 

Are you aware of any case law to this effect? I would be very interested
to know about it. I recently submitted a proposed license to the OSI and
comments on this list have not, shall we say, filled me with optimism as
to its acceptance. If it isn't certified, Plan B is to try to use it
with interested parties in our industry anyway, while making clear that
the license is not OSI-certified. Our developers would probably still
refer to the development model as an open-source project in casual
usage.

I had planned to require them to put a prominent disclaimer of
non-certification on the site and in the license acceptance
dialog/paperwork, whichever we end up using, but if you know of case law
wherein just the words "open source" cause a justified reliance on the
OSD, then I will have to be much stricter, assuming the license is not
certified. Further information would be appreciated, although obviously
if I have to fall back on Plan B I will do my own due diligence.

Marc