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Re: BitTorrent Open Source License (Proposed Changes)

On Sun, Jul 31, 2005 at 07:03:18PM -0700, Sean Kellogg wrote:
> > > But, if I grant your point, and accept that the DFSG protects my right to
> > > all those things, why doesn't it invalidate licenses that waive liability
> > > to the distributor?  Isn't that my inaliable right... a fee I must pay in
> > > order to use the software...  aren't I being descriminated against to the
> > > benefit of the developer and distributor.  Its an outrage, its
> > > unexusable...  but it is the way it is, and I fail to see a distinction
> > > between libability waivers, venue clauses, or rights to jury trials.

> > It is not discrimination: every user is treated identically.

> Same with the petting an animal... everyone has to do it.  Did you know that 
> pre-18 years olds CANNOT agree to a waiver of liability?  Seems waivers 
> descriminate against them.

No, the local laws discriminate against them.  TTBOMK, their legal guardian
can still agree to such a waiver on their behalf.

> > It is not a fee: implicit warranty and similar liabilities are created
> > by law.  Where a warranty disclaimer applies, it is because the
> > relevant law allows that warranty to be disclaimed.

> Personal jurisdiction and rights to a jury trial are created by law... 
> where venue clause and trial by jury waivers apply, it is because the
> relevant law allows them to stand.

Well, setting aside the urge to nitpick the difference between law, and a

There are very real (though not *overly* probable) scenarios in which a
hostile upstream can abuse a choice of venue clause to cause substantial
harm to the Free Software community.  In contrast, a "no warranty" clause
seems to be strictly defensive.  This is a difference between freedom from
*being* wrongly sued by a copyright holder (choice of venue), vs. freedom
*to* wrongly sue a copyright holder (waiver of liability).  Is there some
*practical* reason I'm overlooking why we should be concerned about a waiver
of liability being a "fee" to those who receive Free Software?

Steve Langasek
postmodern programmer

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