Date: Tue, 12 Aug 2003 13:09:46 -0700 From: underway@comcast.net (Gary W. Swearingen) To: Terry Lambert <tlambert2@mindspring.com> Cc: FreeBSD Chat <chat@freebsd.org> Subject: Re: Good news, Brett! Message-ID: <g63cg6y6wl.cg6@mail.comcast.net> In-Reply-To: <3F38B911.402A9FEB@mindspring.com> (Terry Lambert's message of "Tue, 12 Aug 2003 02:53:21 -0700") References: <4.3.2.7.2.20030808105028.018effd0@threespace.com> <9nk79ng6hf.79n@mail.comcast.net> <3F34D951.5080800@iconoplex.co.uk> <ein0eievne.0ei@mail.comcast.net> <3F38B911.402A9FEB@mindspring.com>
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Terry Lambert <tlambert2@mindspring.com> writes: > "Gary W. Swearingen" wrote: >> No open-source license I'm aware of says the licensor is not liable >> for IP issues or claims to indemnify anybody for anything. They >> merely say that they software is being sold "as-is" and so won't be >> changed at the licensees request and that the licensee must agree to >> pay for any damages that the software causes. (I'm quite sure that >> that damage does NOT refer to any IP violations, etc.) > > The eCOS license does. You mean the old one, I suppose; the new one is basically the GPL. I didn't read much of the long old license, so can't fully disprove your claim, but I have some evidence. Its talk of indemnity is only about the licensee doing the indemnification and then only if he's sublicensing or something. It DOES (uniquely, AFAIK) explicitly disclaim warranty that the code is "NON-INFRINGING". But disclaiming warranty is not the same as saying that the licensor is not liable for infringement. (It's only saying that the work will not necessarily be made non-infringing, free of charge.) It DOES acknowledge (as many license do) that laws might limit the extent to which liability may be disclaimed in contracts, with an uncommon particular mention of that limitation in regard to liability resulting in death or personal injury as a result of the licensor's (and several others') negligence. I'd like to know more about these legal limitations. (I've assumed that they were mostly referring to some fairly recent "consumer laws" which I thought were fairly innocuous.) Upon further thought, I'll admit that the first part of my statement is wrong if ANY general liability disclaimer is saying that the licensor is not liable for IP issues. (Not liable to the licensee, anyway; the licensor is surely liable to the owner of infringed IP.) So do general liability disclaimers say, in effect, that the licensee agrees to not come after the licensor if the licensee is sued for IP infringement because of his use of the licensed work? And is that enforceable? I've never thought that the disclaimer even addressed this issue, but maybe it does (whether enforceable or not).
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