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

[jonathon]

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On 14/02/15 01:37, Savva Kerdemelidis wrote:

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

I am not a lawyer.
What I write is emphatically not legal advice.
You really need to talk with appropriate legal counsel.

That said, here's my understanding of things.

> 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?

Since you talk about "proprietary", that implies that source code won't
be available. Consequently, the BSD disclaimers won't affect anybody.
Anything you offer will be a user-license, not a developer-license.

But, in case you are asking about open source, and not closed source
proprietary software masquerading as open source which fails all four
canonical tests of open source software.

The license is one item.
The warranty is a different item.
The disclaimer is a third item.

Party A writes a program that does whatever.
It gets released under the BSD.
The disclaimer in the BSD license pretty much ensures that if the
program fails to perform, Party A is not liable.
(There are a couple of minor, extreme edge cases, in some jurisdictions,
where that might not apply. They can be dealt with later, as in, when
the case gets into the courtroom.)

Party B looks at the source code, and modifies it, so that the program
performs as advertised.

Party C then uses the program, and it blows up on them.
Party A is not responsible for any adverse consequences, because of the
built-in disclaimer.
Party B is not responsible for any adverse consequences, because of the
built-in disclaimer.

Party D looks at the code, fixes it, and decides that it can't possible
blow up on anybody. They license it under the BSD ^1, and also offer
paying customers some type of warranty. This paid warranty is a
different thing, than the warranty disclaimer within the BSD license.^2

Party E gets the program from Party D, but doesn't pay for that
warranty. The program blows up on Party E.  Party D is not responsible,
because that BSD disclosure says they aren't.

Party F gets the program from Party D, and decides to pay for the
warranty. The program blows up on Party F.  Party F is liable, because
the paid warranty says that they are liable.

Party G gets the program form Party E.  Party G messes around with the
code, and then gives it to Party H.

Party H runs the program, and it blows up on them.  Party G is not
liable, because of that BSD clause.  Party E is not liable, because they
didn't touch the code.  Party D is not liable, because the BSD
disclaimer says they aren't liable, and Party H didn't purchase the
piece of paper that says Party D would be liable.

If Party D was distributing their "We are liable for all damage"
warranty gratis, things might be different. But even then, for it to be
binding, it has to be between the two parties. As such, Party D probably
would not be responsible for the blow up that occurred to Party H.  I
say "probably", because the wording of that "We are liable for all
damage Warranty". ^3

Open Source licenses are binding only on, and affect only _developers_
- --- people that play with the code in the software. They have no effect
on users --- people that merely use the software.

^1: Unlike some other licenses, one can declaim BSD source code, under a
different license, and still be in full compliance with the BSD license.

^2: In some fields of endeavour, it is standard practice for an
organization to simultaneously claim that their product does "x", and
does not do "x", and be in the clear, legally speaking. I'm not going to
get dragged into a discussion of how that can be.

^3: There no doubt is some legal jurisdiction in which wording doesn't
matter. But I'd like to think that most legal jurisdictions are not like
that of Colorado, where an offer to sell a DVD includes (c) and (p)
rights, as well as other, related rights. (Appellate Case Law: An offer
to sell, by necessity, includes all related rights to the item being
sold, regardless of whether or not they are enumerated, or even
mentioned, during the course of the sale!)

jonathon
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