[Date Prev][Date Next] [Thread Prev][Thread Next] [Date Index] [Thread Index]

Re: SGI Free SW license 1.1 compatability with Xfree86 style license

>>>>> On Thu, 06 Jul 2000 11:38:21 EDT, "Chloe Hoffman" <chloehoffman@hotmail.com> said:

 Chloe> Actually Henning's understanding of the nature of the clause
 Chloe> is correct.  An indemnity is a different animal than a
 Chloe> warranty - they are not synonymous. A (no) warranty clause in
 Chloe> a software license typically addresses what a licensor
 Chloe> guarantees (or does not guarantee) with respect to the
 Chloe> software. If the licensor does not live up to the warranty (if
 Chloe> any) e.g. a warranty that the software would comply with the
 Chloe> docs was provided and the software does not, the remedy is
 Chloe> typically breach of contract/termination (although sometimes
 Chloe> other remedies are provided) and the damages would involve the
 Chloe> damages suffered by the licensee (subject to limitation of
 Chloe> liability clauses).

 Chloe> An indemnity however typically goes after a different concern
 Chloe> (although it can overlap in coverage in some cases with a
 Chloe> warranty e.g. intellectual property infringement and a
 Chloe> warranty of title). An indemnity in a software license
 Chloe> typically addresses losses caused by third parties to one of
 Chloe> the contracting parties. In this case, the clause is trying to
 Chloe> protect SGI (licensor) from losses caused by its licensees'
 Chloe> "use" of the SGI code e.g. product liability suits brought by
 Chloe> third parties against SGI caused by the licensee(s),
 Chloe> third-party IP suits against SGI caused by the licensee(s),
 Chloe> etc. A warranty provided (or not) by SGI won't get them that
 Chloe> protection because the warranty/no warranty clause puts no
 Chloe> obligation on the licensee(s). SGI could require a warranty
 Chloe> from its licensees but that probably wouldn't give it the
 Chloe> remedies it wants i.e. SGI doesn't merely want to terminate
 Chloe> the agreement - it wants its losses to be covered. The type of
 Chloe> indemnity below is common in OEM/software distribution
 Chloe> agreements as well as in redistributables sections of
 Chloe> off-the-shelf commercial software licenses.

Thank you for the clarification.  Still I don't read Henning's
interpretation there (or in what you've said above).  It's not SGI can
sue you if you use their software to compete with them.  It's if
someone uses their software they've gotten from you and that someone
sues SGI takes no responsibility for that someone and they are all
your problem.  Is this an accurate reading of the above?  Or is there
more there?


 Chloe> This is not legal advice, no attorney-client relationship is
 Chloe> established, etc. etc.


 >> From: James LewisMoss <jimdres@mindspring.com> To: Henning Makholm
 >> <henning@makholm.net> CC: James LewisMoss
 >> <jimdres@mindspring.com>, debian-legal@lists.debian.org Subject:
 >> Re: SGI Free SW license 1.1 compatability with Xfree86 style
 >> license

 >> Date: 05 Jul 2000 22:04:31 -0400
 >> >>>>> On 05 Jul 2000 16:05:56 +0200, Henning Makholm
 >> >>>>> <henning@makholm.net>
 >> said:

 Henning> Scripsit James LewisMoss <jimdres@mindspring.com>
 >> >> On 30 Jun 2000 18:49:01 +0200, Henning Makholm
 >> >> <henning@makholm.net> said:
 Henning> That is a very broad clause: "Recipient will .. indemnify
 Henning> .. SGI from, .. any loss ... arising out of Recipient's use
 Henning> .. of the Covered Code". That seems to mean that if I use
 Henning> the software in a business that competes successfully with
 Henning> SGI, they could sue me and demand that I pay up for their
 Henning> lost profits. If that's a legal interpretation I'd say this
 Henning> is quite nonfree.
 >> >> This reads to me just as a no warranty clause.
 Henning> That is probably the intent of it. However, can you refuse
 Henning> that my reading is one of the cases the language actually
 Henning> covers?
 >> Actually yes.  It looks like a standard no warranty clause.  It
 >> uses big words and could have been clearer by just saying NO
 >> WARRANTY, but I don't see your reading in it.

@James LewisMoss <dres@debian.org>      |  Blessed Be!
@    http://jimdres.home.mindspring.com |  Linux is kewl!
@"Argue for your limitations and sure enough, they're yours." Bach

Reply to: