Re: SGI Free SW license 1.1 compatability with Xfree86 style license
>>>>> On Thu, 06 Jul 2000 11:38:21 EDT, "Chloe Hoffman" <email@example.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
Chloe> This is not legal advice, no attorney-client relationship is
Chloe> established, etc. etc.
>> From: James LewisMoss <firstname.lastname@example.org> To: Henning Makholm
>> <email@example.com> CC: James LewisMoss
>> <firstname.lastname@example.org>, email@example.com Subject:
>> Re: SGI Free SW license 1.1 compatability with Xfree86 style
>> Date: 05 Jul 2000 22:04:31 -0400
>> >>>>> On 05 Jul 2000 16:05:56 +0200, Henning Makholm
>> >>>>> <firstname.lastname@example.org>
Henning> Scripsit James LewisMoss <email@example.com>
>> >> On 30 Jun 2000 18:49:01 +0200, Henning Makholm
>> >> <firstname.lastname@example.org> 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
>> 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 <email@example.com> | Blessed Be!
@ http://jimdres.home.mindspring.com | Linux is kewl!
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