[License-discuss] Fwd: Query whether BSD Licence liability disclaimer is "viral".

[Savva Kerdemelidis]

Hi,

I am a legal advisor interested in vetting open source licenses.

I have a question about whether the liability disclaimer in the BSD licence
is "viral" i.e. does it apply to downstream software incorporating BSD
licensed code? If so, doesn't that mean that including any warranties for
such downstream software (e.g. proprietary) will breach the license?

I reproduce the license below:

“Revised BSD Licence”/“New BSD License”/”Modified BSD License” (3 clause
licence) (1999) Copyright (c) <year>, <copyright holder> All rights
reserved. Redistribution and use in source and binary forms, with or
without modification, are permitted provided that the following conditions
are met:

Redistributions of source code must retain the above copyright notice, this
list of conditions and the following disclaimer.

Redistributions in binary form must reproduce the above copyright notice,
this list of conditions and the following disclaimer in the documentation
and/or other materials provided with the distribution.

Neither the name of the <organization> nor the names of its contributors
may be used to endorse or promote products derived from this software
without specific prior written permission.

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS"
AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
ARE DISCLAIMED. IN NO EVENT SHALL <COPYRIGHT HOLDER> BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT
LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY
OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE."

I note that the BSD license requires you to put the above disclaimer "in
the documentation and/or other materials provided with the distribution". I
further note that "THIS SOFTWARE" and "COPYRIGHT HOLDERS AND CONTRIBUTORS"
are not defined.

Could a reasonable interpretation of "software" and "copyright holders and
distributors" mean this liability disclaimer will cover subsequent
developers creating a derivative/joint work in downstream proprietary
software that incorporated the open source software?

Can anyone shed light on this interpretation issue?

Regards

Savva Kerdemelidis
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