[License-review] Request for Approval : Modular Open Software License (MOSL)

[Lawrence Rosen]

Karl Fogel wrote:
> In a copyright license, there's no point having language about written
> agreements between two specific parties.  That would be an actual
> contract -- and of course the licensor is always free to negotiate a
> contract with any particular licensee.  The copyright license itself is
> not a contract; it's a promise not to sue for copyright infringement
> provided certain conditions are met.
>
> I'm not a lawyer; the above is merely my understanding of the 
> no-warranty clause in open source licenses.

Karl, unfortunately that isn't quite true. I'm not sure if we should call it
an open source urban legend that arose in the early days of the GPL, but it
is certainly a legal misconception. In every copyright license case that I'm
aware of, in addition to any copyright issues, the court has analyzed the
case as if the license was a contract between two parties. Warranties, in
particular, are analyzed under contract law (or tort law). So are license
conditions.

You simply can't wish contract law away from FOSS. 

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Rd., Ukiah, CA 95482
Office: 707-485-1242

-----Original Message-----
From: Karl Fogel [mailto:kfogel at red-bean.com] 
Sent: Saturday, February 02, 2013 2:26 PM
To: Hadrien G.
Cc: license-review at opensource.org
Subject: Re: [License-review] Request for Approval : Modular Open Software
License (MOSL)

"Hadrien G." <knights_of_ni at gmx.com> writes:
>"UNLESS AGREED TO IN WRITING, THIS SOFTWARE IS PROVIDED "AS IS", 
>WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED

People can always agree to a warranty in a separate contract -- that's what
the "agreed to in writing" here would mean in any case.  

In a copyright license, there's no point having language about written
agreements between two specific parties.  That would be an actual contract
-- and of course the licensor is always free to negotiate a contract with
any particular licensee.  The copyright license itself is not a contract;
it's a promise not to sue for copyright infringement provided certain
conditions are met.

I'm not a lawyer; the above is merely my understanding of the no-warranty
clause in open source licenses.
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