Subject: Re: License Committee Report for May 2004
From: Brendan Scott <lists@opensourcelaw.biz>
Date: Fri, 06 May 2005 09:25:44 +1000

Russell Nelson wrote:

> Australia needs different warranty disclaimer wording.  This is a huge
> nasty ball of wax.  How many different warranty disclaimers are there
> in different countries??
> 
> Title: OZPLB Licence
> ReSubmission: http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:9498:200502:ibddhmkdckpieiodmcjd
> Submission: http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:8849:200410:jneejnfcgpacdjcfbokf
> License: In the submission, as proposed.  Existing license is http://nicta.com.au/ozplb_licence.cfm
> Comments: no comments on the resubmission.  They addressed the
>     concerns expressed in the previous submission.
> Recommend: approval


I think the addition of disclaimers hard coded into licences is not an appropriate manner
of approaching the problem - potentially it will lead to one variant of each licence
for each country (and see note below about claus 5 of OSD).  Setting this precedent
will lead to a proliferation and licence management nightmare.  If legislation mandates
specific formulae for warranty exclusions they should be dealt with by way of (eg optional
rider). 


If anything what OSI should do is:

(a) separate warranty specific wording into (either) an approved rider (approval then
gets OSI into difficulties); or 


(b) suggest the inclusion in each licence of generic wording which permits licensors
to add additional warranties; and/or

(c) make it clear that a licence is still entitled to OSI certification if a licensor
modifies it by the addition of warranties which do not affect the scope of licence.

 

The Trade Practices Act issue that Ian has addressed does not apply in all cases and,
to the extent it does apply, affects all licences equally.  As a technical point the
drafting of the disclaimer will also catch legislation from other jurisdictions and
may do so in a manner inconsistent with what those jurisdictions permit by way of disclaimer.
 If so, this would make this effectively a country specific licence (in that there exist
potential licensors for whom it would be illegal to grant the licence) - in breach of
item 5 of the OSD.



Brendan