From: Anonymous Poster,From: David Johnson <[EMAIL PROTECTED]>,
I have concluded that the "No Warranty License" does not conform to the Open Source Definition. The offending clause is as follows:
If the following disclaimer of warranty and liability is not valid due to the laws in a jurisdiction then NO RIGHTS ARE GRANTED in that jurisdiction without the express written permission of the copyright holder.
This violates Item 5 of the OSD, which states that "The license must not discriminate against any person or group of persons.". By not granting equal rights to users, distributors and open-source developers based on factors beyond their clear control (the laws of their jurisdiction), they are being discriminated against.
This also violates Item 7 of the OSD, which states that "The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.". Users, distributors and open-source developers in affected jurisdictions cannot exercise the rights they are guaranteed under the OSD for OSD-compliant licenses without obtaining additional permission ("license") from the author.
Further, the only way to effectively enforce this license is to prevent users in the affected jurisdictions from obtaining or using the software, since as I understand it (IANAL, TINLA, CMIW), the wording of a license cannot override the laws of a jurisdiction, nor physically prevent someone from filing a suit on those laws; it might put you in a more favorable position (that, if assent could be proven, the user assented to the terms and has now violated that; what legal significance this would have is questionable), but that's all.
Since the offending clause forms the only tangible difference between the No Warranty License and the BSD License, I recommend that the No Warranty License be rejected.
Basically, I want a BSD license but I don't want some chuckle-head in a
country where warranty disclaimers aren't valid trying to start a legal
fuss. The only possible point that could be raised is point #5 of the
open source definition. However, I think calling this discrimination
against a person or group is a bit of a stretch.
Unfortunately, it's not a stretch at all, for the reasons outlined above.
The discussion over the past half-year has included a lot of suggestions of ways to get small open-source developers out of the very real threat that an enterprise-level suit could ruin their lives for essentially contributing 'freely' to the world. I think there is some consensus that as laws in a number of countries currently stand, this is problematic at best and impossible at worst, without changes to the relevant Acts.
So far, what has saved open-source developers has I believe had little to do with legalities; it benefits no-one, there is not likely to be any cost recovery, it only delays the fixing of the actual technical problems (where these exist), and it makes for really, really bad PR for those doing the suing at a time when it seems like the 'little guys' are readily being squashed flat by the 'big guys' for the sake of the latters' own business and political interests.
I agree that steps should be taken to protect authors, but this approach, like the others we have seen that attempt to stop any suit in its tracks, is doomed to failure. It comes down to using a license to attempt to make authors untouchable, a position that any judge will simply not accept.
But there's a bigger issue. The author doesn't want some "chuckle-head" suing him, yet what's to prevent some chuckle-head author from suing users under the same clause? What if I don't know if this warranty is valid in my jurisdiction, and give the software to a friend? Will I get sued because I didn't receive the right to distribute the software?
How will the author know you re-distributed it to your friend, since there is no requirement to advise the author? And unless the author has logs from your workstation or ISP at the time (both very hard to procure), how will they prove that you exercised rights of distribution that were not granted to you by the license and that are normally forbidden? And for what reason could they sue you? For potential damages from as-yet unfiled suits from as-yet unknown users?
In addition, the warranty covers use of the software, yet I can obtain the right to use the software without having to agree to the license.
And here you hit the nail on the head; rights granted to you by law which cannot be overridden by a license except by the licensor granting rights to the licensee. So in such jurisdictions as yours, you can get obtain program and use it, but not do other things such as re-distribute it or make derivatives. Does this hurt you? In a philosophical sense, yes, but in a practical sense, probably not. It does hurt the author though, and since we know that software authors are in principle not masochistic...
Cheers, Nathan.
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