Re: why is graphviz package non-free?

[Henning Makholm <henning@makholm.net>]

Scripsit Glenn Maynard <glenn@zewt.org>

> "Therefore, if a Contributor includes the Program in a commercial
> product offering, such Contributor ("Commercial Contributor") hereby
> agrees to defend and indemnify every other Contributor ("Indemnified
> Contributor") against any losses, damages and costs (collectively
> "Losses") arising from claims, lawsuits and other legal actions brought
> by a third party against the Indemnified Contributor to the extent
> caused by the acts or omissions of such Commercial Contributor in
> connection with its distribution of the Program in a commercial product
> offering."

> This is questionable.  I modify your work, removing a feature that somebody
> likes, and sell it.  That somebody, as a result ("caused by the act") of me
> removing that feature in my redistribution, decides to sue you for allowing
> me to do so.  It's a frivelous lawsuit, of course, and you'd probably win,
> but it may cost you money--but I don't think a license that requires me to
> pay your legal fees in this case is free.

I have previously argued for this position in the context of other
licenses, but I have become less convinced that it is actually as
important as I used to think.

In particular, I am not sure that this clause effectively creates any
liability for the commercial redistributor that goes beyond that usual
negligence-based liability (does "common law" speak about "culpa"?) he
would have independently of any licence language mentioning the
situation - in any of the jurisdictions that we otherwise care about?

I would not expect any earthly court to interpret the "caused by" in
the quoted clause to include causation that could not (reasonably be
expected to) be foreseen by the commercial distributor as a result of
his acts or omissions. And if the commercial distributor *could*
foresee that his acts would cause losses for the original author, then
I would expect him to be liable to pay compensate irrespective of what
the license says.

> (You might get the money back from a countersuit, of course, but you
> might not--and if you have this option available, you might just
> elect to make me pay for it all instead of going back to court.)

Making the redistributor pay it would probably involve going to court
too.


(I'm aware that all of this might be wishful thinking. I would rather
like to have graphwiz in Debian, and I would even more dearly like to
have postfix stay).

-- 
Henning Makholm                         "Al lykken er i ét ord: Overvægtig!"