* Why is the new license better? A: Because it's more thorough (covering all of the exclusive rights of a copyright holder under the Copyright Act [see http://www.copyright.gov/title17/92chap1.html#106] and more clearly explaining when the notice and license must be reproduced in code), expressly permits the users to pass the rights along to others (the right to sublicense must be express - which it's not in the original) and contains the disclaimer.
* Isn't there a conflict of interest between Boost contributors and the legal departments of some Boost users? Which license of the two provides the better balance between the interests of these two groups? What is more important, encouraging contribution or encouraging use by large corporate clients? A: Of course, there's always a conflict of interest between licensors and licensees. This license doesn't really change the balance, it just clears things up. Well, it doesn't change the balance from the deal that I think contributors *thought* they were striking under the original license. * It is recognizable that the new license has been prepared with the help of a lawyer. Is this a good thing from a legal perspective? A: Doesn't matter. * I'd like also to point out that it seems to me that the old "in all copies" form is better than the new one; the legal system is sufficiently flexible to reliably recognize a "copy" (i.e. a password protected RAR archive of an mp3 encoded song). The new wording seems to allow self-extracting archives of "the Software" to not carry the license. A: This language was worked on so as to exclude copies solely in object code format. When a self-extracting archive is executed, would it not cause the source code version of the software to be extracted? * Now the disclaimer. <snip> * Does free (beer) software need a disclaimer of any kind? Does it carry any implied warranties that need to be disclaimed? A: Excellent question. Could be the subject of a short law review article. Under most state laws, implied warranties don't arise in gift transactions (although express warranties can). In states that have adopted UCITA -- Virginia and Maryland -- implied warranties arise from all licenses, apparently regardless of whether the license are "gift" licenses or not. In any case, courts are reluctant to find that arms-length commercial-type transactions are gift transactions. Maybe simply posting software on the 'net for all to copy is a gift transaction, maybe not. Maybe licensing your software to Adobe for nothing constitutes a gift transaction, maybe not. But if something goes wrong, Adobe will probably argue that it wasn't a gift. They will say that they gave the contributors publicity in exchange for the software. Or whatever. I haven't found any case law on whether open source licensing constitutes a "gift" under the UCC, and I don't want a case against BOOST or its contributors to be the test case. Remove the disclaimer at your peril. (As background: most courts, other than those in states that have adopted UCITA, deem a license of software to be a "sale of goods" subject to Article 2 of the Uniform Commercial Code. Check out http://www.law.cornell.edu/ucc/2/2-314.html for the provision regarding the implied warranty of merchantability. You'll see it applies to a contract for the sale of goods. Click on the cross reference to "Sale". "A "sale" consists in the passing of title from the seller to the buyer for a price." Hm. Price=$0, so no "sale", right? Interesting argument, and one I would enjoy making it in court, but I don't want you or any of your contributors to have to.) * Does the disclaimer provide any legal protection? A: Yes. Remove the disclaimer at your peril. * Worse, if the disclaimer isn't strictly necessary and doesn't provide much legal protection, doesn't it _weaken_ our postition in a hypothetical lawsuit? Doesn't it present a convenient legal target that can be exploited? A: No. Remove the disclaimer at your peril. In short, why not just drop the disclaimer? A: Remove the disclaimer at your peril. Regards, Devin Devin Smith Nixon Peabody LLP 101 Federal Street Boston, MA 02110 T: 617-345-1000 F: 866-947-1623 _______________________________________________ Unsubscribe & other changes: http://lists.boost.org/mailman/listinfo.cgi/boost
