Date: Thu, 04 Apr 2002 17:29:09 -0800 From: Terry Lambert <tlambert2@mindspring.com> To: "Gary W. Swearingen" <swear@blarg.net> Cc: chat@FreeBSD.ORG Subject: Re: Hold Harmless (was: Anti-Unix Site Runs Unix) Message-ID: <3CACFDE5.7EB9FECA@mindspring.com> References: <20020402113404.A52321@lpt.ens.fr> <3CA9854E.A4D86CC4@mindspring.com> <20020402123254.H49279@lpt.ens.fr> <009301c1da83$9fa73170$0a00000a@atkielski.com> <15530.6987.977637.574551@guru.mired.org> <3CAAAA98.E9D7EBE6@mindspring.com> <b8vgb8679z.gb8_-_@localhost.localdomain> <3CAB69B8.2817604E@mindspring.com> <wjn0wj5lly.0wj@localhost.localdomain>
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"Gary W. Swearingen" wrote: > The disclaimer in the BSDL is a just disclaimer, like that which should > be used when putting a work into the public domain. I'm fairly sure > that the disclaimer is just a notice to whom it may concern which lets > them know the law that exists independent of the disclaimer. Such > notices reduce frivolous suits and have some benefit in lawsuit penalty > determinations (AFAIK). What we call the BSDL contains text for a > license (AKA permission) including conditions plus a disclaimer. > > Acceptance of the license is not dependent on acceptance or even > acknowledgment of the disclaimer. Furthermore, one may easily lawfully > own and use the software without ever seeing the BSDL, and then > successfully sue the copyright owner (unless he can't successfuly sue > regardless of any disclaimer). I think the DMCA binds ytou to the terms of the license, regardless. I think that even without the DMCA, only the license permits you to use the code. The issue comes down to the legality of the contract, which requires an exchange of consideration. The consideration, in this case is, I think, the acceptance of the disclaimer. In the 4 clause case, it also includes acceptance of the non-use of the licensors name in advertising, without permission. While it's true that you can sue for anything, the chances of winning something like this at the appellate level are very small, since any suit at the appelate level would attract the interest of the SPA, RIAA, and a host of others who would not like to see such a precedent appear in case law. And since such things are decided on the basis of a preponderance of evidence... I rather expect that they will provide several semi trailers full of evidence to back you not losing to the person sueing you. > > > Do you know of any cases where people have been successfully sued over > > > information like software, where a license contract was not involved? > > > > No. But I don't know anyone stupid enough to release code > > that way. > > Don' be so sure. Here is the complete legal notice of > /usr/share/mk/bsd.sgml.mk: > > # This file is in the public domain. > > Many of Red Hat's scripts are (were?) treated similarly. The question is whether there are deep pockets behind that. People sue for money. Even in negligence or malpractice cases, the attempt is not to find true responsibility, but to lay the bulk of responsibility on the party with the deepest pockets possible, thus achieving the highest possible return. That's why when there is a malpractice case, the doctor, their practice, the hospital, the hospital administrators, and the insurance companies are all named as parties. > > I *do* know that people and companies have been sued for > > non-performance of contracts, and for failure of life > > support systems (e.g. air bag controllers in automobiles > > not recognizing children in the front passenger seat, or > > erroneously deploying), and lost a great deal of money as > > a result. > > But all of those involve "consideration" and/or contracts with explicit > or implied blah, blah, blah... Yes. Like the consideration that you not use my name in advertising, or the consideration that you hold me harmless. 8-). > > Me not hearing about this happening with code placed in > > the public domain is probably more of a comment on the > > quality of what, until recently, has been available for > > free, rather than a comment on a crisis of conscience on > > the part of the people who would normally sue saying, "Well, > > it was public domain, so I won't sue". > > Well, it took the lawyers a hundred years or so to discover the > Tobacco pot of gold. I suspect that they just haven't smelled > enough money around PD software. I suspect from personal experience > that Red Had's PD scripts have damaged many people. By installing Red Hat Linux successfully? 8-) 8-) 8-). Reminds me of a joke... A: "I hear if you play the Windows NT CD backwards, there's a Satanic message!" B: "That's not the worst! If you play it *forwards*, it installs Windows NT!" > > The license in the BSD case specifically requires agreement > > for use. The GPL doesn't require full compliance for use, as > > partial compliance is permissable, as long as there is no > > distribution. > > Neither license is even involved for some uses. (See 17 USC 117). > The license is required for publishing and those who own a copy of the > software so published may legally execute it without regard for the > license. And executing it is likely to damage them, to some degree. No. The BSD license *specifically* states: The Regents of the University of California. All rights reserved. This includes use and performance rights. 8-). > > In either case, however, you are in violation of the DMCA, if > > you download the code, without agreeing to the license. > > How sure of that are you? I suspect that there must be some mechanism > like shrinkwrap or accept buttons or something. But then I HAVE seen > one court opinion which said it was good enough to provide such notice > after the software is obtained as long as the user has the opportunity > to undo the deal. But I doubt that the DMCA requires one to also > download source code to search for licenses. And I repeat, the BSDL > doesn't require one to waive warranty and liability as part of the > license agreement; it only claims that there are none. Mississipi and Missouri both have appelate level rulings that uphold the validity of shrink wrap licenses; I have not checked the case law on it for some time, but I'm pretty sure that other states have followed suit. It's pretty ironic: the state mottow of Missouri is "The ``show me'' state". > > > So I wonder if the law doesn't already imply a hold harmless. It WOULD > > > be good to make it explicit, of course. > > > > It doesn't. There is already a well established doctorine of > > "attractive nuisance" in common law, which could be applied > > to software that would save you a lrage chunk of money, but > > which then results in harm. Like the unfenced swimming pool, > > where the owner is considered negligent for not putting up a > > fence, if a crimial trespasses on their property, and drowns > > in the pool while stealing free use of the facilities. > > Of course, and I have no doubt that stupid juries would see no > differences in the cases, but that's why we have judges and uncommon > law. There are many arguments I won't go into why it is wrong to hold > PD publishers to a higher standard than prorietary publishers and I > believe that courts have acknowledged a similar concept in their > mentions of "consideration" in contract cases. There is no higher standard. There is only a preponderance of evidence. The proprietary publishers tends to have more money, and therefore can manufacture more evidence, thus more easily achieving the preponderance. -- Terry To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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