For Approval: The netX Public Lisense (in plain text)

John Cowan cowan at
Thu Oct 7 13:45:04 UTC 2010

Schmitz, Patrice-Emmanuel scripsit:

> In European countries, and especially in Germany, courts have
> invalidated general exclusions, and even exclusions "to the extend
> allowed by the law" are considered as unfair regarding contract &
> protection of consumers law. This is the reason why the OSI-approved
> European Union Public License for example, requests from authors and
> contributors a warranty of ownership (regarding their contribution) and
> does not exclude liability in case of wilful misconduct (for example,
> introducing a computer virus) and in case of damages to natural persons
> (imagine that you distribute software for managing a car ABS or an
> aircraft, and it causes a crash!).

Some 11,000 web pages now say, "Imagine a fearsomely comprehensive
disclaimer of liability.  Then fear, comprehensively."  But even in
the U.S. no disclaimer, however fearsome or comprehensively worded,
can possibly protect anyone from being sued for their own intentional
misconduct.  For example, a sign in a hotel room saying "The management
is not responsible for valuables stolen from the room" does not protect
the hotel if its own employees steal them!  Nor, as a matter of public
policy, are disclaimers effective in cases of gross negligence (aka "want
of even slight care" and other terms), though the definition of gross
negligence varies from state to state (and even from judge to judge).
Typically it involves behavior that is (objectively) highly risky, but is
is pursued anyway with conscious indifference to the welfare of others.
(English law as opposed to U.S. law doesn't have a concept of gross

So there is no substantive difference in U.S. law between a waiver that
includes or excludes intentional misconduct and gross negligence.  Indeed,
exclusion may be the safer policy: it is not unheard-of for courts to
refuse to narrow such waivers, preferring to throw them out altogether.
Courts don't like covenants not to sue, for obvious reasons.

What is more, an open-source licensing agreement is a contract of adhesion
(that is, it is put forward by one party on a non-negotiable "take it
or leave it" basis), and therefore will be read, in cases of doubt,
against the party who wrote it.  It's not particularly clear, therefore,
whether a disclaimer of liability in cases of ordinary negligence will
stand up in court either, particularly if there is a major imbalance of
bargaining power between the parties.

So fear, comprehensively.

I am not a lawyer; this is not legal advice, nor is it the unauthorized
practice of law.  I disclaim all liability for general, special,
incidental, and consequential damages suffered by you as a consequence
of paying any attention to what I say.

John Cowan   cowan at
I come from under the hill, and under the hills and over the hills my paths
led. And through the air. I am he that walks unseen.  I am the clue-finder,
the web-cutter, the stinging fly. I was chosen for the lucky number.  --Bilbo

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