Re: groff alternative?

Paul Allen wrote:
> On Fri, 17 Jun 2005, Chuck Swiger wrote:
>> You should know that being involved in a lawsuit generally has nothing to do
>> with the actual merits of the situation, it takes nothing more than one party
>> being unreasonable and looking for anything they can think of to make claims.
>> For someone in the EU-- or Australia, or a lot of places, apparently-- that  
>> could be something as simple as the "DISCLAIMER" section of the BSD license, 
>> since those jurisdictions do not permit liability to be completely disclaimed.
> 
> I beg your pardon?  I highly doubt that there is a jurisdiction on the
> planet that supports the principle of one-sided contracts.

The BSD license isn't a contract, Paul: it's not phrased as one and it doesn't 
have what the legal types call a "proffer".

> The DISCLAIMER gains its power precisely because you did not pay for the
> work being disclaimed and you voluntarily made use of that work.  This is
> distinguished say from the necessity of good-samaratian laws which apply
> when people give aid without compensation to individuals who are not in a
> state in which they may consent.

Yeah, yeah, I know.  I don't even disagree, but I've got news for you:
the law doesn't always make sense.

> Please provide case citations with such speculation in the future.  A good 
> engineer knows that many things can go wrong, but he worries only about those 
> things he feels are likely.

Go read HIPPA or European contract law (cf German "Cecil" section 315, 
apparently).  I'm not qualified to give legal advice; go pay for an attourney. 
  But here are two comments from people who are:

From: "Lawrence Rosen" <lrosen_at_rosenlaw.com>
To: "'Donnal Walter'" <donnalcwalter_at_yahoo.com>,
         <license-discuss_at_opensource.org>
Subject: RE: open source medical software
Message-ID: <20050127143025.GA15353_at_mail26c.sbc-webhosting.com>
[ ... ]

Software distributors must obey the law regardless of what an open source
license says. So if you must obtain FDA approval before you can distribute
certain software intended for patient care, the license doesn't override
that requirement. You may be required by law to perform certain tests or
peer review before distributing the software; a mere license won't let you
avoid that.

However, the open source license you use cannot *require* licensees to
obtain FDA approval or get peer review. The only thing you can do is remind
licensees of *their* duty to obey the law as they understand the law.

This is similar to the issue of export regulations. As a distributor of
software in the United States, you are required by law to obey US export
regulations. But you can't impose that requirement on your customers who
live and work in other countries. It is up to them to obey the law as they
understand that law. So OSI has never accepted a license that expressly
requires licensees to obey specific US export law.

Your open source license cannot impose specific restrictions on how to copy,
modify or redistribute the work, or restrict such activities to certain
professionals.

As for whether you must include a warranty, that too is often a subject of
legal regulation. A disclaimer of warranty or limitation of liability in an
open source license may not be enforceable in some jurisdictions and for
some forms of injury.

In these cases, you and your customers should probably consult an attorney
specializing in the requirements of the FDA and other government agencies.

	---------------

From: "Axel Metzger" <metzger_at_mpipriv-hh.mpg.de>
To: <license-discuss_at_opensource.org>
Subject: AW: For Approval: German Free Software License
Message-ID: <84D511A814FAF742BF6927D883CF67C177BECC_at_mpg-hap-info.mpipriv-hh.mpg.de>

Hi Chuck,

thanks for your comments. I will try to address your critical remarks.

Chuck Swiger wrote:
[ ... ]
 >>>Distribution: The public passing on of material copies to third
 >>>parties, in particular, onto storage devices or in connection with
 >>>hardware.
 >
 > One is also redistributing the software if you pass the software on in
 > private, say to your relative or to another member of your company.
 >
 > I believe your intent is to enable people to change the software for their
 > private use without making their changes public, but require the source
 > code to be made available when public redistribution, so it would be helpful
 > to clarify these terms a bit.

Here once again, we followed the wording of German and European Copyright
law. Do you have a realistic idea how many problems of interpretation
European lawyers have with the US-based licenses? This is one of the major
reasons why the Ministry wanted to have a more "European" license.

 >>>Section 7 Liability and Warranty
 >>>(1) The Entitled Persons are only liable for conflicting third-party
 >>>rights if they were aware of such rights without informing you.
 >>>
 >>>(2) Liability for errors and/or other defects in the Program shall
 >>>be governed by agreements concluded between you and the Entitled
 >>>Person beyond the scope of this License or, if no such agreement
 >>>exists, by the pertinent statutory provisions.
 >
 > If I modify a program covered by the GFSL, and I want to redistribute my
 > version without any warranty (ie, the standard DISCLAIMER found in the BSD
 > and other licenses which disclaims liability since the software is being made
 > available free of charge), may I do so?

No, under German and European contract law it is impossible to exclude any
warranty and liability. The consequences are not to severe - as long as you
redistribute the program without charging a fee. Under the German Cicil Code
you are only liable if you knew that the program has defects etc.

 > Can a project like FreeBSD, NetBSD, etc, or a Linux distro like Debian,
 > Redhat, etc, adopt GFSL code without conflict with their existing
 > disclaimers?

The disclaimers are invalid under German and European contract law. Sorry,
they are legally inexistent in Europe.

[ ... ]

-- 
-Chuck