Conditions vs. (possibly inaccurate) notices (was Re: Please pass judgement on X-Oz licence: free or nay?
Matthew Garrett wrote:
>The wording of the clause is identical. Are you claiming that the
>differing location of it in the license alters the situations that it
>applies to?
Absolutely.
In the X11 license:
"Permission is hereby granted.... provided that... and that... appear in
supporting documentation.
[Warranty Disclaimer]
[Problem Clause]
[Other Stuff]"
Note that only the conditions in the "Permission is granted" sentence
are actually conditions on the permission grant. The "Problem Clause"
has a status equivalent to the warranty disclaimer; it's another statement.
In the X-Oz license:
"Permission is hereby granted... subject to the following conditions:
1. [Other Stuff]
2. [Other Stuff]
3. [Other Stuff]
4. [Problem Clause]
[Warranty Disclaimer]
Here, the Problem Clause is *clearly* a condition on the permission
grant. (The Warranty Disclaimer might be, but probably isn't.)
-----
Now, the BSD no-advertising clause is a condition.
So if the Problem Clause ("Except as contained in this notice, the name
of X-Oz Technologies shall not be used in advertising or otherwise to
promote the sale, use or other dealings in this Software without prior
written authorization from X-Oz Technologies.") is equivalent to the
similar BSD clause ("Neither the name of the <ORGANIZATION> nor the
names of its contributors may be used to endorse or promote products
derived from this software without specific prior written permission"),
then it is of course fine.
However, Branden believes that the X clause is stronger and more
restrictive. (Which doesn't really matter if it's not a condition of
the permission grant, but does if it is.) We asked X-Oz if they simply
meant it to be equivalent to the BSD clause, but we got weird nonsense
and no useful reply. :-(
----
Side topic.
Warranty disclaimers often state false things. For instance, the
standard disclaimer in the BSD license says IN NO EVENT SHALL THE
COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY ...DAMAGES... ARISING
IN ANY WAY OUT OF THE USE OF THIS SOFTWARE"; many warranties simply
cannot be disclaimed in many jurisdictions, the copyright owner could be
offering a separate warranty on the software, and so forth. The
"Problem Clause" could state false things as well, but it's not actually
a condition of the permission grant, so it's not a big deal.
I have mentioned before that making people agree to poorly drafted
warranty disclaimers in order to use/modify/distribute software can open
up a can of worms and may even make the software non-free. In contrast,
having the warranty disclaimer as a separate legal notice which must be
preserved but is not a condition -- and this is the usual thing --
raises far fewer issues, if any.
The GPL does *much* better on the warranty front than most licenses
because it includes key phrases like "TO THE EXTENT PERMITTED BY
APPLICABLE LAW" and "EXCEPT WHEN OTHERWISE STATED IN WRITING". So it's
just fine that the GPL warranty disclaimer *is* a condition, because
it's actually properly drafted.
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