Re: a proposed change to the OSD

[Mahesh T Pai]

Nathan Kelley wrote:

OK. Let me see if I have this issue correct:

(1) Many open-source licenses are essentially Copyright Notices

Slight difference in my approach. They are more copyright *grants*, no mere notices.

These mainly deal with
modification, re-distribution, and disclaiming liability &
warranties.

Actually, a single document, the 'license' does two things, first, the copyright part, second liabilities & warranties.

(2) The consensus among legal experts here is that a Copyright Notice is not sufficient for disclaiming liabilities & warranties;

Of course not.

for that, a contract must be used. As usual, to form a valid

No.  The difference is very, very, very subtle.  ( I said, NO )

contract, the parties involved both have to agree to the contract
and a consideration has to pass between the two.

Once again, NO NO NO.

It is sufficient that the person who puts the s/w out (the offeror) to make clear his intentions to disclaim liability. Sometimes, (as in the US of A, as I understand it), there is no use even if the liability is disclaimed; coz. statute imposes liability. That is why, the GNU GPL says, "except to the extent permitted by law, ... bla bla ...".

In other jurisdictions, the disclaimer acts as the terms and conditions under which the offeror makes the offer. Absense of consideration is another circumstances in which the courts are likely to *uphold* disclaimers.

The 'click wrap' is only one of several means of ensuring that the oferee / receipient knows the terms under which the s/w is offered.

In fact, several, the statute specifies, that in the absence of contrary stipulations between the parties, liability is to be presumed. Once again, it is for the offeror to ensure that the terms under which his s/w is made available are *properly* communicated (that is, driven into the users' heads).

(3) In view of the fact that many open-source packages are also
gratis, the majority opinion is that consideration in this case is
the act of downloading or otherwise obtaining the software, as
opposed to receiving monies.

I do not hold this view; I do not about others.

Making products available gratis isn't going to help; after all, Internet Explorer is gratis, but many organisations use it as an

Precisely, but making the source code available, and telling the user what exactly it does along with putting the onus of ensuring the burden of ensuring that the sources meet the user's requirements on the user himself will help.

In fact, with due respects to the courts and the opinion of US experts, I feel that the real, unspoken reasoning behind Specht V. Netscape (I think you are referring to this decision earlier), is that the s/w from Netscape did something it was not supposed and expected to do. That being so, I simply unable to view the decision in Specht as being justified by the reasoning given therein. ( in common english, this means that both the decision and the reasoning are correct, but the reasoning does not imply the conclusion arrived at. In law, this is really important, coz. courts are not supposed to adjudicate or reason on something which is not before them) That being so, no real purpose would be served by blindly following that decision.

essential part of their desktop infrastructure. If there was a
major defect in Internet Explorer that caused any particular
enterprise customer revenue loss, would this really stop them from
going to court?

You are entitled to IE if, and only if, you have a licensed copy of any of the flavours of Microsoft's Windows operating system. You paid for that. Hence, the decision would be based on the fact that you paid for your copy of MS win; and *not* coz. the court holds a gratis s/w liable for damages caused by its use.

"The time is coming when you won't be able to distribute software unless you have presented the license to the user and their assent
is necessary to access the software. Even free software. Our
industry is maturing and we need to be more legally careful and
rigorous."

Yes, but, as one reads the history of what is called 'product liability' one finds that the real reason the courts, and the legislatures developed the concept is that the so called contract was between un-equals, and the producer was in a superior position, in terms of economic power and skill / technology - coz. the design, manufacutre and the specifications of the product was usually a secret. Hence, there was no real 'bargain' for purpose of fair contract.

In case of OSS, we need to emphasise that the bargain is between equals, economically, and to some extent, technically. Technically coz the sources are available, and the user gets the right to modify them. Again, most licenses, like the GPL permit the distriutor to charge specifically for providing warranty. If the OSS community stresses these issues in their licenses, more specifically, in the disclaimer clauses in the licenses, in due courses, the courts will take care of the OSS community's interests; *even* if the statute goes against us (on a/c of undemocratic processess, like lobbying).

My question, though: who is UCITA truly designed to serve? The
public?

Another symptom of the rot, another face of the same danger faced by the public, which goes under the pseudonym, "trusted computing" means those millions of computers in those several offices, homes and schools around the globe, which can be trusted to force the users to buy the software (not necessarily computer programs) *and* hardware from the 'trustworthless' few. T

Cheers, Nathan.

Nothing to cheer about that.
Mahesh T Pai.


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