[boost] In Re Comments From Peter Dimov

From: Smith, Devin (DSMITH_at_[hidden])
Date: 2003-07-24 18:11:14

* Why is the new license better?

A: Because it's more thorough (covering all of the exclusive rights of a
copyright holder under the Copyright Act [see
http://www.copyright.gov/title17/92chap1.html#106] and more clearly
explaining when the notice and license must be reproduced in code),
expressly permits the users to pass the rights along to others (the
right to sublicense must be express - which it's not in the original)
and contains the disclaimer.

* Isn't there a conflict of interest between Boost contributors and the
legal departments of some Boost users? Which license of the two provides
the
better balance between the interests of these two groups? What is more
important, encouraging contribution or encouraging use by large
corporate
clients?

A: Of course, there's always a conflict of interest between licensors
and licensees.  This license doesn't really change the balance, it just
clears things up.  Well, it doesn't change the balance from the deal
that I think contributors *thought* they were striking under the
original license.  

* 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?

A: Doesn't matter.

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

A: This language was worked on so as to exclude copies solely in object
code format.  When a self-extracting archive is executed, would it not
cause the source code version of the software to be extracted?

* Now the disclaimer. 

<snip>

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

A: Excellent question.  Could be the subject of a short law review
article.  Under most state laws, implied warranties don't arise in gift
transactions (although express warranties can).  In states that have
adopted UCITA -- Virginia and Maryland -- implied warranties arise from
all licenses, apparently regardless of whether the license are "gift"
licenses or not.

In any case, courts are reluctant to find that arms-length
commercial-type transactions are gift transactions.  Maybe simply
posting software on the 'net for all to copy is a gift transaction,
maybe not.  Maybe licensing your software to Adobe for nothing
constitutes a gift transaction, maybe not.  But if something goes wrong,
Adobe will probably argue that it wasn't a gift.  They will say that
they gave the contributors publicity in exchange for the software.  Or
whatever.  I haven't found any case law on whether open source licensing
constitutes a "gift" under the UCC, and I don't want a case against
BOOST or its contributors to be the test case.  Remove the disclaimer at
your peril.

(As background: most courts, other than those in states that have
adopted UCITA, deem a license of software to be a "sale of goods"
subject to Article 2 of the Uniform Commercial Code.  Check out
http://www.law.cornell.edu/ucc/2/2-314.html for the provision regarding
the implied warranty of merchantability.  You'll see it applies to a
contract for the sale of goods.  Click on the cross reference to "Sale".
"A "sale" consists in the passing of title from the seller to the buyer
for a price."  Hm. Price=$0, so no "sale", right?  Interesting argument,
and one I would enjoy making it in court, but I don't want you or any of
your contributors to have to.)

* Does the disclaimer provide any legal protection?

A: Yes. Remove the disclaimer at your peril.

* 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?

A: No. Remove the disclaimer at your peril.

In short, why not just drop the disclaimer?

A: Remove the disclaimer at your peril.

Regards,
Devin

Devin Smith
Nixon Peabody LLP
101 Federal Street
Boston, MA 02110
T: 617-345-1000
F: 866-947-1623