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From: David Abrahams (dave_at_[hidden])
Date: 2003-07-08 08:59:26

"Peter Dimov" <pdimov_at_[hidden]> writes:

> Beman Dawes wrote:
>> Let's see what the lawyers say before worrying too much about what
>> may be a non-issue.
> I'd like to add some of my concerns to the list.
> First of all let me say that I fully realize that we just got a ton
> of free legal advice and that I do appreciate the efforts of
> everyone involved. And of course I am not a lawyer, not even able to
> impersonate one in front of laymen. But I do have some questions.
> Let's put the disclaimer aside for a moment; I'll return to it later. Here
> is the old Boost "standard" license (minus the disclaimer):
> // Permission to copy, use, modify, sell and distribute this software
> // is granted provided this copyright notice appears in all copies.
> I'll repeat here the new license (minus the disclaimer) for completeness:
> [start new license--
> Permission is hereby granted, free of charge, to any person or organization
> obtaining a copy of the software covered by this license (the "Software")
> to use, reproduce, display, distribute, execute, and transmit the Software,
> and to prepare derivative works of the Software, and to permit others
> to do so, all subject to the following:
> The copyright notice in the Software and this entire statement, including
> the above license grant, this restriction and the following disclaimer,
> must be included in all copies of the Software, in whole or in part, and
> all derivative works of the Software, unless such copies or derivative
> works are solely in the form of machine-executable object code generated by
> a source language processor.
> -- end new license]
> My questions are failry obvious.
> * Why is the new license better?

I'll get the lawyers to comment on this in more detail, but here are
some answers as I understand them:

   Big picture: it has been vetted by lawyers for reducing ambiguity
   and risk for corporate legal departments, while protecting Boost
   developers by disclaiming implicit guarantees.

   It uses the correct legal terms for granting copy rights: "use,
   reproduce, display, distribute, execute, and transmit"...

   It is explicit about the differing requirements on source
   vs. object code.

> * Isn't there a conflict of interest between Boost contributors and the
> legal departments of some Boost users?

Sure, at some level. Contributors want to guarantee nothing and legal
departments want us to guarantee everything. Everyone benefits from
better clarity, though, and that's what this license accomplishes.

> Which license of the two provides the better balance between the
> interests of these two groups?

The 2nd one, IMO, because it doesn't hurt contributors at all while
it helps the legal departments. In fact, it probably helps
contributors by giving them a standard license with some legal
foundation behind it that is less likely to cause legal SNAFUs
later. Win-win.

> What is more important, encouraging contribution or encouraging use
> by large corporate clients?

I don't think we have to choose. Nobody is willing to sacrifice
contribution to the interests of corporate users, AFAICT, but IMO we
can make the legal situation more solid and that will smooth things
for everyone.

> * It is recognizable that the new license has been prepared with the
> help of a lawyer. Is this a good thing from a legal perspective?

Just my opinion, but yes: it means that legal departments are getting
communication in a language they understand and aggressive lawyers are
less likely to mess with us.

> I'd like also to point out that it seems to me that the old "in all copies"
> form is better than the new one; the legal system is sufficiently flexible
> to reliably recognize a "copy" (i.e. a password protected RAR archive of an
> mp3 encoded song).

I'm not sure about that. The problem is that the old version didn't
distinguish source code copies from object code copies.

> The new wording seems to allow self-extracting archives
> of "the Software" to not carry the license.

Good point. A simple "copies of the source" might work better than
the wording we have now.

> Now the disclaimer. I am not sure to what extent we are even
> supposed to discuss such legal matters here; the public archives of
> the mailing list can be used as evidence in a hypothetical future
> lawsuit (SCO showed the way). So I won't go into details.

Heh. Did that point kill this discussion <wink> ? I'll ask the

> * Does free (beer) software need a disclaimer of any kind? Does it
> carry any implied warranties that need to be disclaimed?
> * Does the disclaimer provide any legal protection?

Some, IIUC. Remember that the law here is applied in civil suits, so
the kind of protection you need is "discourages lawyers from suing
because it weakens their case". That's what the disclaimer does.

> * Worse, if the disclaimer isn't strictly necessary and doesn't
> provide much legal protection, doesn't it _weaken_ our postition in
> a hypothetical lawsuit? Doesn't it present a convenient legal target
> that can be exploited?

I don't understand that.

> In short, why not just drop the disclaimer?

See above.

Dave Abrahams
Boost Consulting

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