(speaking personally)
The Apache license 2.0, sections 7 and 8 say:
7. Disclaimer of Warranty. Unless required by applicable law or agreed
to in writing, Licensor provides the Work (and each Contributor provides
its Contributions) on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS
OF ANY KIND, either express or implied, including, without limitation,
any warranties or conditions of TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely
responsible for determining the appropriateness of using or
redistributing the Work and assume any risks associated with Your
exercise of permissions under this License.
8. Limitation of Liability. In no event and under no legal theory,
whether in tort (including negligence), contract, or otherwise, unless
required by applicable law (such as deliberate and grossly negligent
acts) or agreed to in writing, shall any Contributor be liable to You
for damages, including any direct, indirect, special, incidental, or
consequential damages of any character arising as a result of this
License or out of the use or inability to use the Work (including but
not limited to damages for loss of goodwill, work stoppage, computer
failure or malfunction, or any and all other commercial damages or
losses), even if such Contributor has been advised of the possibility
of such damages.
This are the "use at your own risk" clauses that allow everyone, from volunteer
individuals to large corporations, to be reassured that this gift of open
source software sitting in front of the recipient is properly understood to be
a gift, and not a promise. It puts the onus on the recipient to be sure that
the software is fit for purpose to whatever their own standards are, and if
they can't, they should not use the software.
At the time of drafting the AL2 license, I believe the justification for having
"unless required by applicable law" phrases on each were that it was typical
legal boilerplate; more optimistically it could be seen as a polite nod to the
wide array of viewpoints in different jurisdictions as to what can actually be
dislaimed in a software copyright license, and that perspectives were likely to
shift over time and the hope was that open source usage could be universal
enough to shift it in its favor. However, it has resulted in organizations
confusingly believing that in those jurisdictions where warranties and
liability can not be entirely waived, that the rights in the license are still
conferred regardless, and that whatever baseline warranties, liabilities, and
resulting support would be inferred are allowed and even expected.
This results not just in "free riding" - where naive organizations simply use
open source code straight from the source without paying for a support
agreement, yet expect support. We saw this when companies with no prior
engagement with the Log4J developers flooded that team with demands for
attestations on their part that they'd fixed all the bugs and it was defect
free. The nerve.
This has also put individuals and organizations publishing open source code at
the risk of fines and other sanctions in jurisdictions where such limitations
are not only weak, they are under direct attack by perhaps well intentioned
regulations like the EU's Cyber Resiliance Act. I'm sure you've all followed
the drama but two excellent blog posts on this matter are:
https://blog.nlnetlabs.nl/open-source-software-vs-the-cyber-resilience-act/
https://eclipse-foundation.blog/2023/01/15/european-cyber-resiliency-act-potential-impact-on-the-eclipse-foundation/
Amendments to the proposed CRA are being sought to limit its damage upon the
OSS community, but I worry that its base premise (that warranties/liabiliies
can not be waived, and thus even non-EU publishers of source code could be
found subject to its fines) and theory of incentives (put all the burdens on
the software publisher; the market will sort out the resulting effect on
supply/demand and prices) to be wholly broken. The erosion of those disclaimers
is a systematic threat to what makes OSS work, and even if we achieve a
negotiated battle to limit those compromises today, it only shifts the
goalposts for next season's compromises.
I'd like to propose that the stewards of licenses approved by the OSI and in
major use consider two adjustments to their licenses:
1) Removal of the "unless required by law" terms in the Disclaimer of Warranty
and Limitation of Liability clauses
2) Explicit text added that clarifies that if any part of such sections can not
be honored by the recipient, the recipients' rights granted under this license
are terminated.
If I give a child some candy, and they come to expect candy every time they see
me, I'm going to stop giving them candy, on principle.
IANAL so I won't try to draft the above, but I'd wager $1 that such text could
even be made GPL compatible.
This community is extraordinarily generous with its gifts and many corporations
and governments have been able to free ride off the back of that generosity
with very few actually returning value in any form. Clarity on this point would
not only help reaffirm the implicit social contract underlying the incredible
engine of creativity and economic power that OSS has become, it would remind
recipients of the value of working with vendors or other service providers who
are able to assume that kind of warranty and liability service for a fee.
Thoughts?
Brian
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