Re: [License-discuss] License-discuss Digest, Vol 40, Issue 7
If the endorsement clause is violated, that's a breach. But there is no way to violate the disclaimer, and as noted it is not a condition. It just tells you that you don't have certain rights you might otherwise expect to have. I'm not sure there's grounds to distinguish the endorsement clause and disclaimer clause in this way. The wording of the BSD License says 1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer and 2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution I would argue that the disclaimer clause (as with the endorsement clause) is a condition as it goes to the root of the agreement to grant a license i.e. the licensor allows the code to be copied/modified but only if all liability is disclaimed. In any case, the license grantor could sue for damages, if someone were to attempt to overwrite the terms of the disclaimer in redistributions of downstream software. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License-discuss Digest, Vol 40, Issue 7
Savva Kerdemelidis scripsit: I'm not sure there's grounds to distinguish the endorsement clause and disclaimer clause in this way. The wording of the BSD License says 1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer Well, precisely. The parts of the license are three: notice, conditions, disclaimer. If the disclaimer were a condition, it would not be mentioned (twice!) separately from the conditions. If this argument doesn't convince you, I can only point to the unanimous practice of many large corporations who include BSD-licensed code into their proprietary software, and then offer warranties on that software. If it's good enough for them, it should probably be good enough for you. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org A mosquito cried out in his pain, A chemist has poisoned my brain! The cause of his sorrow / Was para-dichloro- Diphenyltrichloroethane.(aka DDT) ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License-discuss Digest, Vol 40, Issue 7
Sorry, not sure of the right way to respond, hopefully this works :) -- Message: 3 Date: Sat, 14 Feb 2015 23:23:41 + From: jonathon jonathon.bl...@gmail.com To: license-discuss@opensource.org Subject: Re: [License-discuss] Fwd: Query whether BSD Licence liability disclaimer is viral. Message-ID: 54dfd8fd.9020...@gmail.com Content-Type: text/plain; charset=windows-1252 -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. I'm not sure what you mean by user licence - you can't grant the right to use software under copyright law, only the right to make copies and make derivative works. Use could be considered a pseudo-right. If the BSD disclaimers won't affect anybody (or only affect 'developers' not 'users') why are they there? 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. I think you mean Party D is liable. 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. If users receive a copy of the code and have notice of the license that applies to the software why wouldn't they be bound by the disclaimer? ^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. Yes, it is possible to have multi-licensed code, but if subsequent license is in conflict with conditions in the BSD license (e.g endorsement clause, disclaimer clause), wouldn't this breach 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. As above, if a subsequent license purports to overwrite the conditions of the BSD license, isn't the more likely interpretation that you are in breach of the BSD license and therefore liable for damages and possible cancellation? There is also something called The ‘First-Clause’ Rule which applies in the US (see http://www.chadbourne.com/files/Publication/3fd0999c-3dc0-4e13-acec-4d0093ca9f38/Presentation/PublicationAttachment/c3ac96a8-516e-4d9c-b880-4e7c0ac0fd41/Interpreting_Conflicting_Contractual_Provisions.pdf ). David Woolley scripsit: My understanding is that only if those warranties are given in the name of organisation. The proprietary developer can give warranties, in their own name, and I think Microsoft does. I agree and would go further: there is no such thing as a third-party disclaimer of warranty. Alice may disclaim all warranties on something she gives Bob, but Charlie's warranties aren't affected by this disclaimer. As above, surely the disclaimer over the software is binding on Charlie if it is a condition of receiving a copy of the BSD licensed code and Charlie is aware of the license terms? IANAL; TINLA; this is not UPOL. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org Mark Twain on Cecil Rhodes: I admire him, I freely admit it, and when his time comes I shall buy a piece of the rope for a keepsake. -- ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss End of License-discuss Digest, Vol 40, Issue 7 ** ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License-discuss Digest, Vol 40, Issue 7
Savva Kerdemelidis scripsit: I'm not sure what you mean by user licence - you can't grant the right to use software under copyright law, only the right to make copies and make derivative works. Use could be considered a pseudo-right. If the BSD disclaimers won't affect anybody (or only affect 'developers' not 'users') why are they there? A user license is one suitable for software users who are not interested in making or distributing copies, verbatim or modified. It's usually called an end user license agreement, or EULA. Most proprietary software is distributed under such a license. If users receive a copy of the code and have notice of the license that applies to the software why wouldn't they be bound by the disclaimer? Because the disclaimer is not a condition of the license, it's simply physically annexed to it. Note that it's not given a number or bullet. Yes, it is possible to have multi-licensed code, but if subsequent license is in conflict with conditions in the BSD license (e.g endorsement clause, disclaimer clause), wouldn't this breach the BSD license? If the endorsement clause is violated, that's a breach. But there is no way to violate the disclaimer, and as noted it is not a condition. It just tells you that you don't have certain rights you might otherwise expect to have. As above, surely the disclaimer over the software is binding on Charlie if it is a condition of receiving a copy of the BSD licensed code and Charlie is aware of the license terms? But it isn't a condition. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were: any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee. --John Donne ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
