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.
(speaking personally)
Brian,
Your premise that all liabilities can be waived is not correct. This is
in the interest of the public - imagine, for example, one had in a
release at a go-cart track "you are waiving the right to make a claim
against us for intentionally causing you bodily harm." That is against
public policy because it incentivizes someone to fail to exercise an
appropriate degree of care for others, such as disabling the brakes on
the go-carts, and for that reason the law won't enforce the release.
What can be waived varies from jurisdiction to jurisdiction, but I
believe it's fairly universal that one cannot waive liability for
intentional wrongs.
Imagine if an individual included in an open source project code that
was designed to take down the entire electric grid as an act of
terrorism and it worked. Is it appropriate that the person would not be
liable to the electric companies for that intentional act because of a
waiver in the license?
In the US, we acknowledge the existence of those unwaivable claims in
contracts by doing what the Apache license does, carving out "unless
required by applicable law." My understanding is that the clause isn't
effective in the same way in some countries and would instead be ignored
altogether, leading to liability for everything, not just the unwaivable
claims. I also understand that in some countries there are different
standards of liability for gifts versus an exchange that benefits both
parties. That is why the OSI gets requests for jurisdiction-specific
licenses that specifically name what the licensor will still be liable
for - those wrongs that, by the operation of law, cannot be avoided by
waiving them in a contract.
So removing the clause from the licenses would only make it worse, not
better. I also don't think the second option would work - I use the
code, the electric grid goes down, I sue the developer, the developer
moves to dismiss on the basis that there was no license because the user
had agreed not to hold the licensor liable. I see two potential outcomes
- the user doesn't have a license and is therefore an infringer, but
that doesn't negate the malicious developer's liability for the harm
(although the liability on the copyright infringement claim might
outweigh the defendant's liability on the tort claim, so it's not worth
bringing the claim), or the court would say there is still a license but
that clause is unenforceable as against public policy.
Pam
Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pam...@chesteklegal.com
+1 919-800-8033
On 2/17/2023 12:42 PM, Brian Behlendorf wrote:
(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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