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

Schmitz, Patrice-Emmanuel patrice-emmanuel.schmitz at
Thu Oct 7 14:13:39 UTC 2010

John Cowan scripsit 
> 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
> negligence.)
> 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.

[Schmitz, Patrice-Emmanuel] Well John, I appreciate your disclaimer above (and I *am* a lawyer :-)). Sure you may be right concerning US law (that - I confess - I ignore). In Europe, liability exclusion must not only be moderated in case of wilful misconduct but also in consideration of statutory product liability laws... However, IMHO the purpose of the discussion is not to compare US and EU laws, but to fix the point that according to the 10 OSI rules "there may be good reasons for not approving the netX Public Licence (as Carlo Piana said) but not because of their liability exclusion provision (which is outside the scope of copyright)".
> --
> 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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