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

[Charles Swiger]

Hi, Savva--

On Feb 13, 2015, at 5:37 PM, Savva Kerdemelidis <savva at nzlawonline.com> wrote:
> 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?

The BSD license isn't considered "viral", because it does not require downstream software which incorporates the BSD licensed code to also be licensed under the terms of the BSD license.

However, the original BSD components would still retain their original licensing and the disclaimer of liability with regard to the original developers, and even downstream developers to the extent that they change components which are kept under the BSD license and become "contributors".

> If so, doesn't that mean that including any warranties for such downstream software (e.g. proprietary) will breach the license?

Nope.  One is free to offer a warranty and provide support for the software in exchange for consideration.

That is true even with GPL'ed software (which is sometimes described as a "viral" license)-- take a look at Red Hat's commercial support offerings, for example.  [1]

[ ... ]
> 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. 

The BSD license on the OSI site is a template; when put into practice, the software and copyright holders become well 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? 

Sure.  Keep the code under a BSD license in the downstream proprietary version, and the disclaimer remains intact.  You don't even have to change the license; simply don't provide the source code for the proprietary changes, as the BSD license permits one to do.

(Whether doing so is a good approach is another matter-- I think most folks would be better served by working with and contributing back towards the open source community rather than creating proprietary forks of BSD licensed code.)

> Can anyone shed light on this interpretation issue?

Sure.  One thing to note is that the disclaimer of warranty found in the BSD license is based upon something in US law called the "Magnuson–Moss Warranty Act":

   http://en.wikipedia.org/wiki/Magnuson–Moss_Warranty_Act

Other jurisdictions will have other consumer protection laws, and in particular, someone who offers source code for free may well be in a different category than someone for makes a commercial product available for sale, solicts customers via advertising, and so forth.  The latter will likely have obligations under the Uniform Commercial Code, "fair dealing", truthful advertising, etc and therefore may not be able to disclaim all liability (regardless of what the BSD license terms state).

Regards,
-- 
-Chuck

[1]: Red Hat probably uses a term like 'support contract'.  However, "sellers of consumer products who make service contracts on their products are prohibited under the [Magnuson–Moss Warranty] Act from disclaiming or limiting implied warranties."