[License-discuss] Reconsidering the "unless required by applicable law" clauses on warranties and limitations of liability

Thorsten Glaser tg at mirbsd.de
Sat Feb 18 21:45:30 UTC 2023

Brian Behlendorf dixit:

> My premise is that if you can not hold me free from
> liability or warranty, I have the right to not allow you access to the other
> rights granted in my software license.

But do you, really? It’s more an everything-or-nothing thing because
they are present as soon as there’s a handing-over.

In fact, they might be even more present if you try to limit things
(but still hand something over) because you’re leaving “gift” land.

There’s also the point that, if you say “either you hold me free from
liability or warranty, or you must not use this at all”, it’s not
usable for most of the world probably.

But let’s spin this for a bit.

• OSS licences don’t restrict on use, and it’s possible that copyright
  is not sufficient to restrict use (probable even)

• the “liability or warranty” you’re trying to avoid comes from you
  publishing a thing, not from the recipient using (or misusing) it

  ‣ someone explained these things to me as the one creating/publishing
    anything having to take responsibility for that, at least at the
    basic minimal level

  ‣ if you publish anything, you’ll *have* to take into account that
    people may misuse that, and no matter their unlawful things you’re
    still liable for the consequences of their misuse, up to a point

    ⇒ which usually is some combination of
      – wilful damage (deliberately inserting a backdoor or so)
      – gross negligence (which is deliciously unclear)
      – direct damages to human life, caused by direct actions of
        the author
      – infringement of others’ rights (including copyrighted works
        without proper licences, or something)
      at the very least

You often get around the “warranty” part by gifting, but not the
basic liability.

(my tl;dr here is that the liability starts to exist before copyright
and licences even come into play, and become valid as soon as you
publish something, no matter how restrictive the licence… possibly
even when you don’t give a licence)

> in the context of a commercial relationship between the two parties. Great,
> attach those regs to that commercial relationship.

That’s not for licensors to decide but for lawmakers…

> at all a focus of the CRA. The CRA would do nothing to impact a bad actor who

What is a CRA? Assuming you don’t means clan restoration act here…

> Do we want to start down a path that will lead inevitably to demands
> for "real names" and national IDs

Just ignore these demands. Only law enforcement can make them.

> interest. If a company was found to be wilfully violating a copyright term to
> further their business interests? I bet the BSA would have something to say

*cough*SQLite*cough* (but let’s not go OT)

<ch> you introduced a merge commit        │<mika> % g rebase -i HEAD^^
<mika> sorry, no idea and rebasing just fscked │<mika> Segmentation
<ch> should have cloned into a clean repo      │  fault (core dumped)
<ch> if I rebase that now, it's really ugh     │<mika:#grml> wuahhhhhh

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