Date: Sat, 09 Aug 2003 12:21:53 +0100 From: Paul Robinson <paul@iconoplex.co.uk> To: "Gary W. Swearingen" <underway@comcast.net> Cc: FreeBSD Chat <chat@freebsd.org> Subject: Re: Good news, Brett! Message-ID: <3F34D951.5080800@iconoplex.co.uk> In-Reply-To: <9nk79ng6hf.79n@mail.comcast.net> References: <4.3.2.7.2.20030808105028.018effd0@threespace.com> <9nk79ng6hf.79n@mail.comcast.net>
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Gary W. Swearingen wrote:
>I'll try to summarize what I think he was trying to say:
>
I'll just have to point out your summary is flawed though, and it's more
complicated than you are implying.
>German and EU law makes developers (I suspect that means "owners"),
>distributers, and dealers of software liable in ways that cannot be
>waived in license contracts such as the GPL. [So be it. Lawyers
>are paid to sort that stuff out. It's no reason for people to not
>use o.s. software; just reason to not do business in the EU.]
>
Yeah, wave that big foam hand with "USA #1" written on it! Woop!
This is not restricted to the EU. In the USA, liability laws are even
more stupid than they are in the EU, and I think you'll find saying "If
you use this software you accept I'm not liable in any way for it's
actions or for any IP issues" is not a sufficient clause in a license to
indemnify you from liability. You almost certainly need to EXPLICITLY
pass the liability of failure onto the user, not just say "I'm not
liable, OK?". I've been saying this for years. Several lawyers I've
spoken to concurred. It is *obvious*. Unfortunately, nobody seems to
have listened until this German piped up. Good on him.
>Employers are in a tricky legal situation when they pay people to write
>software that they can't sell licenses for. (No explanation, except
>that it is a "latent contradiction".) [That was worthless.]
>
Again, it comes back to liability and it's intrinsic connection with
intellectual property and how IP is enforced in the world. You write
software whilst working for a company, the company owns the software.
Except, you've explicitly said they can't sell it or exert any
commercial rights over it, in which case they're not technically in
control of the IP and therefore can't be held liable for the code. In
which case you weren't employed by them, or your contract is too vague.
Seems an obvious point to make to me.
>Users of open-source software are taking a risk that he's wrong (or
>the law will change) and all those open-source software people really
>can't be held liable. [Sounds like a GOOD thing, to me. But they
>don't think they can sue them as it is now, so there's no more risk.]
>
Liability is important. I'm assuming everybody here does have some kind
of professional indemnity insurance? I know I do. You should too - it
makes sense, and doesn't cost much.
>The GPL should be rewritten in German to acknowledge everyone's
>liability ("in the interest of users, open source developers and
>competition") under German law. [That's about all he needed to have
>said.]
>
The GPL should be rewritten, yes. It should look more like the BSD license. It should then be translated, by lawyers with native knowledge of those languages and legal systems applicable.
--
Paul Robinson
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