Generic Simple License

[Justin Wells]

On Tue, May 23, 2000 at 02:06:41PM -0500, Forrest J. Cavalier III wrote:
> Justin Wells wrote:
> 
> > I'm not sure that such short disclaimers will work.
> 
> What is the smallest warranty disclaimer you have seen and think
> would work?

They're all pretty long. I think some states and provices will specifically
require you to disclaim warranties of fitness to purpose and merchantability
explicitly. In Canada you have to refer to them as "conditions", whereas
in the US you call them "warranties" so you ought to disclaim both. 

You probably also want to insist that you will accept no liability, and 
specifically disclaim things like negligence, lost profits, etc. 

You may have to explicitly mention these, not just in some catch-all 
phrase that claims to disclaim "all" or "everything". The law considers
these consumer rights to be so important that you have to bend over 
backwards to make sure the consumer knows they're being disclaimed.

Remember, I'm not a lawyer, but that's what I've read.


> > Also, since you do not
> > require people to copy the license on to further works, you will get sued by
> > third parties who had no opportunity to read your disclaimers.
> 
> I don't understand how.  OK, well I understand that anyone can
> bring a lawsuit against anyone just by going through the motions,
> but let's discuss liability.

But your license permits the 2nd party to redistribute it to the 3rd 
party under any terms they like. So the 3rd party will get a valid license
from the 2nd party, but without any disclaimers--you authorized that. 

So now the 3rd party is using your software, but there are no disclaimers 
on it, and a bug in your software causes them to lose their whole 
multi-million dollar business and kills their family. You get sued,
and if you were found to be negligent in your programming, you may
be liable for at some portion of the damages.

Even if you've explicitly disclaimed the warranties of fitness to 
purpose and merchantability, all liabilities, etc., since the third 
party never saw those disclaimers they had every right to expect that
all the ordinary protections were in place. Since you didn't require 
the 2nd party to inform the 3rd party, it's probably your fault that
the 3rd party wasn't warned.

The reason why the BSD/Apache license insist that you copy the license
is really to make sure that the disclaimers get copied along with it. 

> How does such removal of the license text and disclaimer make the
> authors any more liable for damages arising from third party use?

Because disclaiming implicit warranties and all liabilities has to be 
done explicitly and prominently. If the disclaimers are removed, then 
it is neither explicit nor prominent--so the disclaimers are probably
unenforceable.

Again, I'm not a lawyer, so don't believe me.

> Here are thoughts and motivation behind the license:
> 
>    - I do not want to have a license propagation requirement since it
>      is a barrier to combining software written under various licenses.

I don't think so. If all anyone is required to do is copy your disclaimers
around, then that's not any more work than them having to copy around 
your copyright notice. 

You could stick all the license stuff in the source code at the top of 
every file like the Apache people do, and then it's no work at all, unless
someone actually wants to go to the trouble of copying only part of one 
of hte files.

>      Also, I want recipients to have the ability to create commercial
>      closed source, where the third-party does not have distribution
>      rights, as well as open source.

Sure, let everyone do anything they like so long as your license gets 
propagated. 

What, exactly, are your concerns with using something like the BSD 
license, perhaps with some of the obnoxious clauses removed? It lets
anyone do anything, providing they copy the license and copyrights. 
(Now that the advertising clause has been removed anyway).

Justin