[License-review] For Approval: Open Logistics License v1.2

[Bradley M. Kuhn]

McCoy Smith wrote:
> I'm not a German attorney, but it's my understanding that certain
> warranties or liabilities cannot be disclaimed in German law. This is the
> same in other law, including the US. The end result of most FOSS licenses
> is they have the effect of disclaiming whatever under the local law can be
> disclaimed, but the local law will impose liabilities where they cannot be
> disclaimed.

Indeed.  This has been an issue regularly discussed about FOSS licenses since
their inception — I remember such discussions about this as far back as 1997.
Of course FOSS licenses can't disclaim what one cannot disclaim in a given
jurisdiction.  That's why every good FOSS license already tries very hard to
disclaim the maximum permitted by jurisdiction.  If there is a bug in those
“get to the maximum disclaimable under this law” text, it should be fixed by
*modifying those licenses* — not by proliferating the license set that OSI
recommends.

> It might be helpful for this discussion if there were some reference to
> something (statute, case law) that obligates that a disclaimer in Germany
> be styled in the particular way this license, since it certainly impacts
> the enforcement of FOSS licenses in Germany (for which there is quite a bit
> of precedent).

… which, again, if such evidence existed, it would mean we should redraft all
FOSS licenses so they work better in Germany.  A special purpose license to
address such an issue is pure license proliferation.

In addition to what McCoy asks for, I'd ask for a specific analysis of what
harm can be caused to an individual user, consumer, or contributor if they
can't disclaim a particular warranty in Germany under existing FOSS licenses,
and specifically how this draft corrects that harm.

Relatedly, it seems to me that — even *if* in Germany there is a slight
increase in the amount of warranties that for-profit operators in FOSS can't
disclaim under existing FOSS licenses, then it's not much of a tragedy, as
long as individual users, consumers and/or contributors are not impacted.

It's worth noting in this regard that the push toward maximal warranty
disclaimer in copyleft licenses — historically speaking — had only two goals
(a) to make sure individual contributors didn't take on liability they
couldn't handle, and (b) to encourage adoption by for-profit companies of
projects that had such individual contributions.  We don't have any problem
in FOSS with (b): companies continue to adopt FOSS in record numbers.

Thus, if the (a) can't be show to be a problem in Germany in some real,
non-hypothetical terms, I think this proposal is a waste of time.  If (a) is
shown to be a serious problem in Germany, we need to launch a wide-reaching
redraft of all disclaimer clauses in all FOSS licenses — right away.

 *  * *

Side point: if this Germany warranty disclaimer thing is the primary impetus
of this license, why is the name “Open Logistics License”?  Why not call it
what it is intended to be: “Extra Warranty Disclaimer for Germany License”?
What part of the license has to do with opening the logistics of a project?
--
Bradley M. Kuhn - he/him

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