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

[Lawrence Rosen]

Karl Fogel wrote:
> So, I have heard the opposite from other lawyers.  Since I'm not a lawyer,
> I will merely point out that at least some lawyers I know seem to disagree
> on this matter :-).

Do you mind if we ignore anonymous hearsay on this list? Attorneys can speak
for themselves if they wish. So can you, of course, but not if you're merely
going to quote something you heard somewhere on the Internets. 

> In any case, for the purposes of this discussion, I assume you would agree
that 
> the no-warranty clause in open source licenses does not preclude two
parties
> signing a separate contract, just between themselves, overriding that
clause.

I don't disagree with that. 

But more important,  many open source licenses contain some forms of
warranty, implied or explicit (e.g., warranty of provenance). And there are
certain warranties that, in some jurisdictions, cannot be disclaimed by
saying "no warranty." Those warranty and no-warranty provisions are likely
to be interpreted by courts under contract analysis, especially since
damages for breach of warranty is typically a contract damage. Even the
American Bar Association, in its (unfortunate) proposed rules for the law of
software licenses, expressly did not absolve FOSS licenses from contractual
rules, including those relating to warranty.

/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 3:45 PM
To: Lawrence Rosen
Cc: license-review at opensource.org
Subject: Re: [License-review] Request for Approval : Modular Open Software
License (MOSL)

"Lawrence Rosen" <lrosen at rosenlaw.com> writes:
>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. 

So, I have heard the opposite from other lawyers.  Since I'm not a lawyer, I
will merely point out that at least some lawyers I know seem to disagree on
this matter :-).

In any case, for the purposes of this discussion, I assume you would agree
that the no-warranty clause in open source licenses does not preclude two
parties signing a separate contract, just between themselves, overriding
that clause.