Subject: RE: FOR APPROVAL: OZPLB Licence
From: Russell Nelson <nelson@crynwr.com>
Date: Mon, 27 Dec 2004 15:24:49 -0500

ian.oi@bdw.com writes:
 > Many thanks for your comments - it was good to get some feedback, even if it
 > seems rather hostile.

Just an experiment to see if I could prod the license-discuss folks
into action.  Didn't work; won't do it again.

If your legal theory is correct, then this is a REALLY REALLY big and
bad problem.  The mere publication of one open source license which
abides by the laws of Australia doesn't even begin to address the
problem.  What if every country imposes its own precise liability
restriction wording?  Are we going to need 132 (or whatever) open
source licenses multiplied by every different style of open source
license (GPL, LGPL, and MIT at a minimum)?  Or do we create a 26 page
long "union" license which contains every liability restriction known
to man?  Including the Vatican City, Turks & Caicos, Tuvalu, and
Somalia, where there is no one law for all residents of the country,
but instead (slightly) different laws depending on which clan you
belong to (or in the case of guests, which clan you are a guest of).

This is simultaneously no reason to turn your license down, and EVERY
REASON TO.

Sigh.  Double sigh.

I have no idea how to avoid this train wreck.  Or, rather, I have no
practical idea how to avoid it.  The obvious solution is to get
Australia to say that no liability is formed by an uncontrolled
transfer of information.  Is that something that any sensible trade
law should have?  Yes.  Is the law often sensible?  No.

Maybe we need a global Open Source Treaty, which says that use of any
freely available information imposes no liability on the author(s)?
Then we can take the liability disclaimers out of all the open source
licenses because they won't be needed anymore.  Maybe we can get the
WTO to add it to GATT?

 > [I will need to get instructions from NICTA, but it seems like a good idea
 > in principle. It would also align with our shared concern with you to not
 > detract from OSD-compliant licence standardization, to the extent possible.
 > We might need to tweak it abit to fit in with our legal system, but that
 > kind of dual BSD-style licensing would work here as well. As a drafting
 > issue, we would particularly have to think about how we draft the nexus with
 > Australia.] 

Most of the work of the license-discuss committee is to help people
get the best open source license they can within the strictures of
their goals.  So, to that end, do you wish to temporarily withdraw
your license approval request, with the understanding that it's
currently approvable but potentially improvable?

 > PS If there is a confidentiality notice at the bottom of this email from me,
 > please ignore it - our firm's email system automatically adds a footer on
 > emails that might contain such wording. Unfortunately, I can't turn it off.

Exactly and precisely the reason why automatic disclaimers are wrong.
Any law or legal precedent that says that email is "claimable"
reflects a grave misunderstanding of the nature of email.

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