Date: Wed, 03 Apr 2002 12:44:40 -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: <3CAB69B8.2817604E@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>
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"Gary W. Swearingen" wrote: > Terry Lambert <tlambert2@mindspring.com> writes: > > > 2) Imply in law a hold harmless for code placed in the > > public domain, so that licenses are not required to > > obtain this protection for authors. > > How do you explain the fact that many lawyer-rich companies have put > information into the public domain with nothing more attached than a > disclaimer? Many books don't even have that. I claim the disclaimer is a license, and that the code is conditioanlly placed in the public domain, over the disclaimer. > 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. 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. 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". > Are you aware that most users of most open source software (specifically > BSD-licensed software) need not (and seldom do) agree to the terms of > the licenses (including the disclaimers) to legally use the software > (as long as they don't republish it), yet few of the lawyers who've > looked at open source licenses have raised this as a risk. 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. In either case, however, you are in violation of the DMCA, if you download the code, without agreeing to the license. > 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. > And if licenses ARE required for hold harmless protection, it should be > noted that GOOD licenses are required, and probably ones which don't > allow you to own the software copies or maybe to own them without first > accepting the licenses. This is already taken care of by the DMCA. It has a lot of assinie provisions, but it includes legitimization of the shrink-wrap license. -- Terry To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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