-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1
On 14/02/15 01:37, Savva Kerdemelidis wrote: > I am a legal advisor interested in vetting open source licenses. I am not a lawyer. What I write is emphatically not legal advice. You really need to talk with appropriate legal counsel. That said, here's my understanding of things. > I have a question about whether the liability disclaimer in the BSD licence > is "viral" i.e. does it apply to downstream software incorporating BSD > licensed code? If so, doesn't that mean that including any warranties for > such downstream software (e.g. proprietary) will breach the license? Since you talk about "proprietary", that implies that source code won't be available. Consequently, the BSD disclaimers won't affect anybody. Anything you offer will be a user-license, not a developer-license. But, in case you are asking about open source, and not closed source proprietary software masquerading as open source which fails all four canonical tests of open source software. The license is one item. The warranty is a different item. The disclaimer is a third item. Party A writes a program that does whatever. It gets released under the BSD. The disclaimer in the BSD license pretty much ensures that if the program fails to perform, Party A is not liable. (There are a couple of minor, extreme edge cases, in some jurisdictions, where that might not apply. They can be dealt with later, as in, when the case gets into the courtroom.) Party B looks at the source code, and modifies it, so that the program performs as advertised. Party C then uses the program, and it blows up on them. Party A is not responsible for any adverse consequences, because of the built-in disclaimer. Party B is not responsible for any adverse consequences, because of the built-in disclaimer. Party D looks at the code, fixes it, and decides that it can't possible blow up on anybody. They license it under the BSD ^1, and also offer paying customers some type of warranty. This paid warranty is a different thing, than the warranty disclaimer within the BSD license.^2 Party E gets the program from Party D, but doesn't pay for that warranty. The program blows up on Party E. Party D is not responsible, because that BSD disclosure says they aren't. Party F gets the program from Party D, and decides to pay for the warranty. The program blows up on Party F. Party F is liable, because the paid warranty says that they are liable. Party G gets the program form Party E. Party G messes around with the code, and then gives it to Party H. Party H runs the program, and it blows up on them. Party G is not liable, because of that BSD clause. Party E is not liable, because they didn't touch the code. Party D is not liable, because the BSD disclaimer says they aren't liable, and Party H didn't purchase the piece of paper that says Party D would be liable. If Party D was distributing their "We are liable for all damage" warranty gratis, things might be different. But even then, for it to be binding, it has to be between the two parties. As such, Party D probably would not be responsible for the blow up that occurred to Party H. I say "probably", because the wording of that "We are liable for all damage Warranty". ^3 Open Source licenses are binding only on, and affect only _developers_ - --- people that play with the code in the software. They have no effect on users --- people that merely use the software. ^1: Unlike some other licenses, one can declaim BSD source code, under a different license, and still be in full compliance with the BSD license. ^2: In some fields of endeavour, it is standard practice for an organization to simultaneously claim that their product does "x", and does not do "x", and be in the clear, legally speaking. I'm not going to get dragged into a discussion of how that can be. ^3: There no doubt is some legal jurisdiction in which wording doesn't matter. But I'd like to think that most legal jurisdictions are not like that of Colorado, where an offer to sell a DVD includes (c) and (p) rights, as well as other, related rights. (Appellate Case Law: An offer to sell, by necessity, includes all related rights to the item being sold, regardless of whether or not they are enumerated, or even mentioned, during the course of the sale!) jonathon -----BEGIN PGP SIGNATURE----- Version: GnuPG v1 iQIcBAEBAgAGBQJU39j0AAoJEE1PKy9+kxpl8bUP/jXHJh52Ey3loXrOKdpVWzcm u/S0w5z7TxC09ArpBTTxHRVL9Io3FE9XiPrnJUjmoNnzt38zODaA348OseROhIyP O3P641RJTrMU5y+457Gw6k+d5B7Ytb7iBzBB1N9tb9vzT4NSxsNK6rbsvFhbCO7t HVBUeZAI6mWwi3QVy6vagjWG0m0Z8uwJPaWg+xVuGQDOLhzajMVZWX4sp2h95Gwf HsuEK4txaMn0fNT4//ukTKqQOPPorniYv10oA9OdBZLDNatIkw50VZ1J83vrUv84 cYZmoYSoJxa08K+rKSSMtc0FtowWiyg6rt7fbuUaNu9dOuxHB50YxlgA0+Z+5wBw JzkI/sPfRBs67ixSkGz3tVGiEkcwuX1+kqiMyRKd/t376sn+cry0irHi9Cw77Gzv aVlvwVEI1S6byMuQdmScSckmFNGdP5PlkbXADuX8KUXTiT0bmdBGd9ZH4+i/gXth vZ0Nc+Fhs+hHBXc0tdBPIDS5rERb4bo+Hm0LoK4VzDcoixOKj3odPhg5/vfwQaKn jiptXV9hNN9tet6XOxrvgr49S1Y0mfwQMDeyiJbyqsY9e47c0HcApEVqRUj6eAyt Ey8GcWorvPPGcOhLr7ut7Qif6sEx9Hvel8RYOivmf4W1x5ctn5Jvzzz+tz0gb+aB wMt4n0Av7J5N9WXUwyOq =qV9S -----END PGP SIGNATURE----- _______________________________________________ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss