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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>
> > Henning Makholm wrote:
> > 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.
> They would have had more money in the end if I did not do it. That's
> as close to the everyday use of the word "cause loss" I can imagine
> anything to be.

I can not accept that if I were to compete with you, and those who
were formerly your customers became mine, that I should be causing
you loss.  I think that the line of causality is not there.

If you were to lose money as a result of my competition with you,
it is because you invested your money in a losing proposition.
The fault is yours, and you can't sue me for that, as long as
I was not engaging in unfair, illegal competition.

> > I don't remember the license saying "you must idemnify my losses".
> Well not in these particular words, but actually it says (ignoring
> options that are not relevant for the argument): "Recipient will
> idemnify and hold harmless SGI from any loss arising out of
> Recipient's use of the Covered Code."
> OK. So they do not use the word "cause". But I still cannot see that
> that means anything than if I use the program in a way out of which a
> loss for SGI can arise, I must pay up. There is no third party
> involved in this combination from the clause.

You keep referring to "loss for SGI".  11. says "any loss".  It refers
to "distributing", which implies a third party.

Keep the context in mind: there's also "liability, damages,
costs or expenses (including the payment of reasonable attorneys fees)"

Again, it's "use, modification, reproduction and distribution of the
Covered Code or out of any representation or warranty made by Recipient.
You don't think there is a Third Party implied here?  Is SGI going
to be the recipient of your modifications, reproductions, distribution,
or warranty?  Whose loss, liabilities, damages, costs or expenses
could "arise" (be caused) by these things?  SGI? No...: it would
be of the Third Party, or yourself.

Look at the context.  Don't get hung up on "loss for SGI", which isn't
even in 11.

> > 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.
> Exactly - if I did a *wrongful* action that caused SGI loss, I
> would be liable to them no matter if the license said anything
> about it.

You're still hung up on causing SGI loss.  Get over it.  Realize
that competition doesn't _hurt_ others, and it doesn't _cause_
others losses.  (In competition and free enterprise, without
torts entering in,) Only their own actions do.  Competition
only allows an opportunity to demonstrate, in practice, the
weakness of the loser's choices, practices, designs, efficiency,
etc.  No court would _ever_ buy an argument that competition
_causes_ one's losses, and "loss by competition" is _not_
an accounting term, nor an allowable deduction on
Form 1040, Schedule C.

> Therefore the only sensible explanation of why they
> waste words on the clause is that it is meant to apply to *rightful*
> action on my part.

This is only sensible if you think SGI is releasing software
in the hopes that if someone uses it, they can have their
lawyers jump _all_over_ that poor, unfortunate gullible fool.
You're not _that_ paranoid, are you?

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