[License-discuss] License-discuss Digest, Vol 40, Issue 7

[Savva Kerdemelidis]

Sorry, not sure of the right way to respond, hopefully this works :)

> ------------------------------
>
> Message: 3
> Date: Sat, 14 Feb 2015 23:23:41 +0000
> From: jonathon <jonathon.blake at gmail.com>
> To: license-discuss at opensource.org
> Subject: Re: [License-discuss] Fwd: Query whether BSD Licence
>         liability disclaimer is "viral".
> Message-ID: <54DFD8FD.9020902 at gmail.com>
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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.
>

I'm not sure what you mean by "user" licence - you can't grant the right to
"use" software under copyright law, only the right to make copies and make
derivative works. "Use" could be considered a "pseudo-right". If the BSD
disclaimers won't affect anybody (or only affect 'developers' not 'users')
why are they there?


> 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.
>

 I think you mean Party D is liable.


> 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.
>

If users receive a copy of the code and have notice of the license that
applies to the software why wouldn't they be bound by the disclaimer?


>
> ^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.
>

Yes, it is possible to have multi-licensed code, but if subsequent license
is in conflict with conditions in the BSD license (e.g endorsement clause,
disclaimer clause), wouldn't this breach 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.
>

As above, if a subsequent license purports to "overwrite" the conditions of
the BSD license, isn't the more likely interpretation that you are in
breach of the BSD license and therefore liable for damages and possible
cancellation? There is also something called "The ‘First-Clause’ Rule"
which applies in the US (see
http://www.chadbourne.com/files/Publication/3fd0999c-3dc0-4e13-acec-4d0093ca9f38/Presentation/PublicationAttachment/c3ac96a8-516e-4d9c-b880-4e7c0ac0fd41/Interpreting_Conflicting_Contractual_Provisions.pdf
).


> David Woolley scripsit:
>
> > My understanding is that only if those warranties are given in the
> > name of <organisation>.  The proprietary developer can give
> > warranties, in their own name, and I think Microsoft does.
>
> I agree and would go further: there is no such thing as a third-party
> disclaimer of warranty.  Alice may disclaim all warranties on
> something she gives Bob, but Charlie's warranties aren't affected
> by this disclaimer.
>

As above, surely the disclaimer over the software is binding on Charlie if
it is a condition of receiving a copy of the BSD licensed code and Charlie
is aware of the license terms?


> IANAL; TINLA; this is not UPOL.
>
> --
> John Cowan          http://www.ccil.org/~cowan        cowan at ccil.org
> Mark Twain on Cecil Rhodes: I admire him, I freely admit it,
> and when his time comes I shall buy a piece of the rope for a keepsake.
>
>
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> End of License-discuss Digest, Vol 40, Issue 7
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