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

Henning Makholm wrote:
> Scripsit Bolan Meek <Bolan.Meek@wcom.com>
> ...
> > To idemnify means, in this kind of context, roughly, to hold harmless,
> Yes, and wouldn't it cause SGI harm if I competed succesfully with
> them, using their software.

No, that's not what I meant:  to hold _SGI_ harmless, to release _SGI_
from liability, to back up _SGI_ in their motion to be dismissed
from suit over the tort the user (may have) caused.  That's what
is meant by  "idemnify" in this.

And no:  it shouldn't _cause_ loss to SGI if you compete successfully
with them.  In this kind of case, only SGI's shortsightedness in
investing unwisely against your competition could cause them loss.
This is too far removed, too indirect, to be a _cause_ of their

You would have to do something more direct to _cause_ anybody
loss: go damage their equipment, slander them, reveal their
trade secrets, break a contract, let their oxygen supply run
out- when they were depending on your software to run their
life-support systems, etc.

> > if _you_ suffer loss through the use of the software, or if
> > _someone_ else suffers loss through _your_ use of it,
> Where in the clause do you see that loss suffered by SGI is not covered?

Again, for whatever benefit repetition may serve, the loss about which
the user agrees to idemnify SGI is something the user must _cause_.
The one who suffered loss, as a result of a tort by the user, isn't
specified as being SGI, so you ought to look at it generally, rather
than relative to SGI.  If you _cause_ loss (tort) by using the software,
you, and not SGI, shall be responsible.  And that doesn't disclude
SGI from being the one who suffered loss, and the one who is bringing
suit.  But the loss must be the result of a tort (wrongful action
causing loss), not the result of something so indirect as _competition_.

> > If SGI were to suffer business losses as a result of you successfully
> > competeing through the use of their software, the losses wouldn't
> > really be due to you, but their own lack of competetiveness and
> > efficiency.
> Do you think that argument would be sure enough to hold in court that
> this license should be accepted as free?


> > > Well, that's a possible reasoning, but how can you be sure that the
> > > second sentence is not just another, independently valid, rule?
> > You can be sure by the common understanding of language.
> Common understanding of language says to me that sentences that are
> separated by full stops are, like, independent sentences.

Yes. But the thought in the independent sentence is not independent
from the context, unless it is a schizophrenic sentence.  Look at
9, & 10.  Look even at 3.3.  Even that will give context to
understand the meaning of 11.  But in 11, "idemnify" is in
a context of "defend" and "hold harmless".  That context defines
the meaning intended by the use of the word.

> > Legalese doesn't give words strange, arcane, hidden meanings:
> No. Do you think it is a strange, arcane, hidden meaning to say that
> "You must idenmify my losses" means "If I lose money, you must pay up"?

I don't remember the license saying "you must idemnify my losses".
Let me take a moment... (I may have to take back everything I said...)
OK!  I'm back, having reviewed the license and the thread.
In 11. It _doesn't_ say that.

 >> 11. Indemnity. Recipient shall be solely responsible for damages
 >> arising, directly or indirectly, out of its utilization of rights
 >> under this License. Recipient will defend, indemnify and hold
 >> harmless Silicon Graphics, Inc. from and against any loss,
 >> liability, damages, costs or expenses (including the payment of
 >> reasonable attorneys fees) arising out of Recipient's use,
 >> modification, reproduction and distribution of the Covered Code or
 >> out of any representation or warranty made by Recipient.

"Recipient solely responsible for damages..."..."idemnify and _hold
harmless_ SGI"  If SGI loses money due to damage that was _done_
as a result of you using, modifying, etc. this software, then, yeah,
SGI could say "pay up!", only if it's a tort, a wrongful action
on your part, not merely something like _competing_ with SGI.
But that's not what 11. is about.

You may want to look at an Introduction to Tort Law.

> > they can be looked up in the dictionary.
> I did.

Yeah, and there is actually one of the definitions that lend
weight to your concerns (from Webster's 3rd):

Idemnify: to secure or protect against hurt or loss or
damage; to exempt from incurred penalties or liabilities;
to make compensation to for incurred hurt or loss or damage.

[repeated quotation]
> No. Do you think it is a strange, arcane, hidden meaning to say that
> "You must idenmify my losses" means "If I lose money, you must pay up"?

So even "you must idemnify my losses" would mean "If I lose money,
_because you damage me_ (in a tort), you must pay up".
And really, 3.3 is saying this kind of thing:  if you change the
license, in your modifications of the software, and leave SGI open
to liability, you must "pay up" if they get sued.

And I still think that qualifies as a free license.

And I don't have to issue a disclaimer of not being a lawyer, since
I am offering no advice, other than to calm down, and even more,
the law doesn't belong to lawyers, but

Bolan.Meek@wcom.com 972-729-5387
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