[License-discuss] TrueCrypt license (not OSI-approved; seeking history, context).

[Rick Moen]

Quoting Richard Fontana (fontana at sharpeleven.org):

> Looking at the latest TrueCrypt license, I can see how they responded to
> some of the criticism coming from Fedora and others, which is something.
> Some things they didn't change, though. On a fairly quick read, which
> is as much as I want to do, here are some things I noted:

Yes, part of the problem with these cranky and peculiar licences is
that they're more than a bit painful to read.

> IV-4: indemnification clause is broader in scope than that found in any
> mainstream open source license. Possibly problematic. 

Agreed.  Indemnify all co-authors against _any_ liability, damages,
losses, etc.?  They can dream.  In fact, this is pretty demented.
I hope I didn't miss such language in the then-current 2009 version,
though it's possible.

> VI-4:
> 
> "You may allow a third party to use Your copy of This Product (or a copy
> that You make and distribute, or Your Product) provided that the third
> party explicitly accepts and agrees to be bound by all terms and
> conditions of this License and the third party is not prohibited from
> using This Product (or portions thereof) by this License (see, e.g.,
> Section VI.7) or by applicable law."
> 
> I think this practically violates OSD 1 (at least its spirit), since
> conventional multi-package distribution projects can't easily comply
> with this requirement (if only for cultural reasons). 

Yes, depending on what if anything 'explicitly accepts and agrees'
means.

> It possibly also violates the letter or spirit of OSD 10. 

OK, maybe.  Again, depending on what that phrase turns out to mean.

> (VI-7 for reference:
> 
> "IF (IN RELEVANT CONTEXT) ANY PROVISION OF CHAPTER IV OF THIS
> LICENSE IS UNENFORCEABLE, INVALID, OR PROHIBITED UNDER APPLICABLE LAW
> IN YOUR JURISDICTION, YOU HAVE NO RIGHTS UNDER THIS LICENSE AND YOU
> MUST NOT USE, COPY, MODIFY, CREATE DERIVATIVE WORKS OF, NOR
> (RE)DISTRIBUTE THIS PRODUCT, NOR ANY PORTION(S) THEREOF." )

Chapter IV being the disclaimer of liability and warranty, plus the
aforementioned indemnification clause.

> The reference to this provision in VI-4 seems to mean that a
> distributor violates the license by virtue of the fact that the license
> is unenforceable as to the distributee. Since a distributor can't in
> general know whether this is going to be the case, a distributor can
> never have reasonable certainty over whether it is compliant with this
> provision or not. 

Seems to me the intent is solely to sever the licensing rights within
any jurisdiction in which the Chapter IV disclaimer of liability and
warranty + indemnification clause is or becomes ineffective under local
law.  E.g., Lower Slobbovia passes a law that will ban warranty disclaimers
effective next January 1st.  Say I've been in the business of selling
copies of TrueCrypt to Lower Slobbovia's King Stubbornovsky the Last
(for one Rasbucknik each).  I think the VI-7 clause is not intended to
put my export business into copyright violation, but rather to deny all
the conveyed rights to Stubbornovsky and his countrymen (including
redistribution and creation of derivatives).

> VI-6: 
> 
> "IF YOU ARE NOT SURE WHETHER YOU UNDERSTAND ALL PARTS OF THIS
> LICENSE OR IF YOU ARE NOT SURE WHETHER YOU CAN COMPLY WITH ALL TERMS AND
> CONDITIONS OF THIS LICENSE, YOU MUST NOT USE, COPY, MODIFY, CREATE
> DERIVATIVE WORKS OF, NOR (RE)DISTRIBUTE THIS PRODUCT, NOR ANY
> PORTION(S) OF IT. YOU SHOULD CONSULT WITH A LAWYER."
> 
> This is a very interesting provision because it seems to indicate
> that you violate the license if you don't have absolute certainty
> regarding what it means or whether you are in compliance, a sort of
> weird meta-condition. I remember we objected to this on principle. 

I've seen this sort of cranky measure in various proprietary product
licences.  It strikes me as the sort of provision that judges have
probably long ruled to have pretty much no legal effect, and to be sort
of a psychological flourish.