[License-review] For Approval: Open Logistics License

Andreas Nettsträter andreas.nettstraeter at openlogisticsfoundation.org
Mon May 30 09:49:49 UTC 2022

Dear all,

Finally, I managed to collect all input. Therefore, I'm happy to address your concerns regarding our license.
I hope the clarifications help to understand our approach a bit more. If there is need for more details, please reply and I'll try to answer faster than in the first round.


1. Eric's concern with regard to the limitation of liability in the license
With regard to the comment on the limitation of liability, Eric fears that contributors will be inappropriately liable under the license. In general, we do not see any reasonable claims against contributors since contributors do not enter contracts with users but only allow to use the IP they created with their contribution (they grant rights of use). At least we are not aware of any claims against contributors to open source software. Furthermore, the limitation of liability clause itself does not create any liability but limits the liability in case it arises at all. Therefore, it should be beneficial to all contributors. Since the license is drafted to comply at least with German laws, a further limitation of liability would not be possible once liability arose at all. E.g., the comprehensive limitation of liability in the Apache 2.0 license would be void, if it had to be interpreted under German (or other European laws). Since liability for personal injury cannot be excluded under German laws on general terms and conditions, adjustments to the close would not benefit contributors.

2. Comments No. 1 and No. 2 by McCoy Smith
McCoy's assumption is 100% correct, there is no comprehensive European contract law any more than there is in the USA. The adjustments made in the license compared to the "original" Apache 2.0 license are made in accordance with German law. We decided to use a choice of law clause in order to be sure that the license is enforceable. As mentioned above, in the case German laws applied wrt the Apache 2.0 license, some of the provisions would be void and therefore not enforceable. However, it is our understanding that there have been few court cases wrt to open source licenses and even fewer decisions that relied on the enforceability of clauses that could/would be void under appliable laws.

3. Comment No. 3 by McCoy Smith:
According to German law, one can only deviate from or limit liability to a very limited extent by means of general terms and conditions. Assuming that open source software is handed over as a gift, we fortunately no longer have comprehensive liability for simple negligence, but "only" the liability specified in the licence (under German laws). However, it is not possible to further deviate from this liability in favour of the potentially liable party.

4. Comment No. 4 by McCoy Smith:
We see three issues here.
a. There seems to be a misunderstanding wrt the last paragraph of the patent clause. Of course, any patentee can unilaterally "revoke" his/her patent with the consequence that it ceases to exist and therefore a right to use it is no longer required. However, this is not a revocation of a patent once granted in the sense that the recipient would then no longer be allowed to use it. What we have seen in the past is that companies and public institutions have released their patents in order to make them available to the public, therefore, we wanted to include this statement in the license.
b. The right to use the patent should be limited to the part of the works that existed at the time of filing a contribution. Otherwise, further contributions from third parties could lead to a situation where a contributor would have to grant rights to use patents which have not been necessary at the time of the contribution. We think this is in line with the patent clause in the Apache 2.0 license.
c. The last issue might be the most important for you. We have been asked by some partners of the current project for which the license has been drafted to include the possibility that they submit a list of patents they are not willing to contribute to the work. This is reflected in the license text. However, it is part of our workflow for the inclusion of contributions into the project that no contributions would be accepted where a patent that would be part of such list of patents excluded from the contribution could be applicable.

Von: License-review <license-review-bounces at lists.opensource.org> Im Auftrag von Andreas Nettsträter
Gesendet: Montag, 16. Mai 2022 18:36
An: License submissions for OSI review <license-review at lists.opensource.org>
Betreff: Re: [License-review] For Approval: Open Logistics License

Dear all,

I'm still waiting for the final input from all partners. Corona/Covid are still causing longer delays here.

Sorry for that. I hope that I can provide feedback until next week the latest.

From: License-review <license-review-bounces at lists.opensource.org<mailto:license-review-bounces at lists.opensource.org>> on behalf of Andreas Nettsträter <andreas.nettstraeter at openlogisticsfoundation.org<mailto:andreas.nettstraeter at openlogisticsfoundation.org>>
Sent: Sunday, April 17, 2022 5:15:36 PM
To: License submissions for OSI review <license-review at lists.opensource.org<mailto:license-review at lists.opensource.org>>
Subject: Re: [License-review] For Approval: Open Logistics License

Dear all,

Thanks for the useful feedback.

I'll talk to the lawyers and give you more information on the decisions and reasons for the changes. Also regarding the connection between German and European law.

Because of Easter holidays this could take some days.

From: License-review <license-review-bounces at lists.opensource.org<mailto:license-review-bounces at lists.opensource.org>> on behalf of Eric Schultz <eric at wwahammy.com<mailto:eric at wwahammy.com>>
Sent: Saturday, April 16, 2022 9:12:50 PM
To: License submissions for OSI review <license-review at lists.opensource.org<mailto:license-review at lists.opensource.org>>
Subject: Re: [License-review] For Approval: Open Logistics License


Thanks for submitting this!

I'm no lawyer but I'm a little uncomfortable with the wording for the disclaimer of liability around which words the "and" and "or" apply to.

For example does it mean:

1. (intent and gross negligence) OR (causing personal injury), or
2. (intent) and (gross negligence or causing personal injury)

While we should definitely avoid any harm to our users, 1 seems like it's creating a pretty high risk to developers. After all, in some cases it's nearly impossible to avoid all possible injuries to all persons everywhere. Depending on the design of the software, it may be dangerous to some subset of users while perfectly safe to other users.

One thought I have is that, in cases of potential liability, I am under the impression that certain punishments apply if someone intends to cause the injury or exhibited gross negligence. So does it make sense to have an "and" there?
My thinking is it would make more sense to rewrite the clause to mean:  (intent OR gross negligence) AND (causing personal injury). After all, if you exhibit intent and gross negligence but don't cause any injury, as I understand it, there would be no civil liability because there would be no injured party. Then again, I'm not a lawyer and I'm based in the US so I'm applying my very limited knowledge to that.


On Thu, Apr 14, 2022 at 6:37 AM Andreas Nettsträter <andreas.nettstraeter at openlogisticsfoundation.org<mailto:andreas.nettstraeter at openlogisticsfoundation.org>> wrote:
Dear License Review Team,

I would like to propose the Open Logistics License for an approval.

You can find the plain text copy of the license in the attachment and the requested additional information in the following.

This new license is intended to represent the rights and obligations of an established license, such as Apache v2, while respecting the differences between US and European law. The changes were mainly done in the paragraphs regarding warranty and liability.

The Open Logistics License is based on Apache v2, but has been modified to comply more with European law.

Legal review:
The entire process of discussing and drafting the license was accompanied by BHO Legal, a German law firm specialized in IT law. Adjustments were made to specifically adapt the rules on the patent license, warranty, and liability to European law. The adjustments are intended to strengthen the acceptance of the license by European companies and minimize (perhaps only perceived) risks. The license was subsequently reviewed and approved by several in-house lawyers of larger European companies. Further details and justifications for the individual changes can be provided on request.

Proliferation category:
The decision on one specific category is quite hard. The license is compatible with Apache2, but was adapted to some specific European rules. The license will be used by a larger group of companies in the frame of open source development for logistics and supply chain management, but is, of course, not limited to this purpose. Therefore, the license can be seen as a special purpose license.

I'm happy to deliver more information, if needed.

Regards from Germany

Andreas Nettsträter
Open Logistics Foundation

The opinions expressed in this email are those of the sender and not necessarily those of the Open Source Initiative. Communication from the Open Source Initiative will be sent from an opensource.org<https://deu01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fopensource.org%2F&data=05%7C01%7Candreas.nettstraeter%40openlogisticsfoundation.org%7C1d60d6063c4e413eb46608da375a5b52%7Cb346d634acfb42c7bd44f1557ee89b1b%7C1%7C0%7C637883158467177587%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000%7C%7C%7C&sdata=28dz6y1EvIXpWfKev3RsJBpKrtf586Pg%2FseSXEGCcTI%3D&reserved=0> email address.

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