Good news, Brett!

Gary W. Swearingen underway at
Sat Aug 9 07:47:26 PDT 2003

Paul Robinson <paul at> writes:

> Gary W. Swearingen wrote:
>>use o.s. software; just reason to not do business in the EU.]
> Yeah, wave that big foam hand with "USA #1" written on it! Woop!

Sorry, I probably would have softened that if I had remembered the
large EU readership here.  But the corporate/socialist forces (I won't
mention what some people call that) that have made laws fill rooms
have given plenty of reason to not do business in the USA, and I have
little doubt that it's much worse in the EU in general and Germany in
particular (except maybe for the few "players" with their teams of
lawyers and lobbiests).

> This is not restricted to the EU. In the USA, liability laws are even
> more stupid than they are in the EU, and I think you'll find saying

With a few narrow exceptions aimed mainly at retail customers, people
are still allowed, in the USA, to deal in liability risks like any
other thing of value or cost and to document their deals in contracts
like software licenses.  The German lawyer said that's generally not
true in the EU.

> "If you use this software you accept I'm not liable in any way for
> it's actions or for any IP issues" is not a sufficient clause in a
> license to indemnify you from liability. You almost certainly need to

No open-source license I'm aware of says the licensor is not liable
for IP issues or claims to indemnify anybody for anything.  They
merely say that they software is being sold "as-is" and so won't be
changed at the licensees request and that the licensee must agree to
pay for any damages that the software causes.  (I'm quite sure that
that damage does NOT refer to any IP violations, etc.)

> EXPLICITLY pass the liability of failure onto the user, not just say
> "I'm not liable, OK?". I've been saying this for years. Several
> lawyers I've spoken to concurred. It is *obvious*. Unfortunately,
> nobody seems to have listened until this German piped up. Good on him.

That's what every license does now (with effect in the US, apparently
not in Germany).  The German lawyer want the liability to be assumed
by the licensor, in agreement with current German law. Yes, it obvious.

>>Employers are in a tricky legal situation when they pay people to write
>>software that they can't sell licenses for.  (No explanation, except
>>that it is a "latent contradiction".)  [That was worthless.]
> Again, it comes back to liability and it's intrinsic connection with
> intellectual property and how IP is enforced in the world. You write
> software whilst working for a company, the company owns the
> software. Except, you've explicitly said they can't sell it or exert
> any commercial rights over it, in which case they're not technically
> in control of the IP and therefore can't be held liable for the
> code. In which case you weren't employed by them, or your contract is
> too vague. Seems an obvious point to make to me.

I must believe it's the same in the EU and USA: the employee/author is
irrelevant in these cases.  The dude is just adding to the FUD.  If an
employer -- it's silly to even be using that term so I'll switch -- if
some legal entity owns IP in a derivative he has created, he shares
ownership of that derivative with all the other copyright owners and
they share all the benefits, liabilities, etc. that come with it.
The situation is no different if the license to derive from the
external code is paid for with money (eg, what MSFT might do), or paid
for with a (cross-)license to use the derivers code (eg, the GPL), or
is paid for only in consideration of assuming liability (eg, the BSDL).

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