Date: 04 Apr 2002 11:07:05 -0800 From: swear@blarg.net (Gary W. Swearingen) To: Terry Lambert <tlambert2@mindspring.com> Cc: "Gary W. Swearingen" <swear@blarg.net>, chat@FreeBSD.ORG Subject: Re: Hold Harmless (was: Anti-Unix Site Runs Unix) Message-ID: <wjn0wj5lly.0wj@localhost.localdomain> In-Reply-To: <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> <3CAB69B8.2817604E@mindspring.com>
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Terry Lambert <tlambert2@mindspring.com> writes:
> "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.
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).
> > 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.
> 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...
> 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.
> 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.
> 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.
> > 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.
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