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

[Hadrien G.]

Just trying to catch up for a second...

If I get it right, a software license is a list of conditions to be met 
before use of a software of its source is legal, and is also considered 
as a contract between the licensors and the licensees.

There exists implicit warranties for any kind of product, including 
software. Software authors which cannot realistically provide such 
support, such as hobby developers, should add a disclaimer of warranty 
in their license. Such a disclaimer states the intent of the developer 
not to provide support, in case such an intent is of legal importance, 
but it is not an absolute warranty that customers can't sue under 
certain juridictions.

The existence of such a disclaimer is also compatible with the existence 
of separate warranty contracts, since these fall under the "UNLESS 
REQUIRED BY APPLICABLE LAW" clause, in this case contract law.

Thus, if I write things this way, without the "UNLESS AGREED TO IN 
WRITING" part...

"UNLESS REQUIRED BY APPLICABLE LAW, THIS SOFTWARE IS PROVIDED "AS IS", 
WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO 
THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS 
FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE AUTHORS OF THE SOFTWARE 
BE LIABLE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR 
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, 
ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF 
THE POSSIBILITY OF SUCH DAMAGE."

...then software authors can rid themselves of any avoidable warranty 
law, while still being able to provide separate warranty contracts if 
they wish to.

Is that how it works ?

Hadrien

Le 03/02/2013 17:36, Lawrence Rosen a écrit :
> 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.
>
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