Re: BitTorrent Open Source License (Proposed Changes)

[Michael Poole <mdpoole@troilus.org>]

Ken Arromdee writes:

> On Mon, 1 Aug 2005, Michael Poole wrote:
>> >> 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.
>> > I'm not sure that's a distinction.   After all, a fee applies when the relevant
>> > law allows a fee to be charged.
>> I apparently did not express what I wanted to.  For implicit
>> warranties, the law creates the cost and (at least sometimes) allows
>> that created cost to be disclaimed.  For choice of venue, the license
>> is what imposes the cost, and that is why it is forbidden by the DFSG.
>
> I wouldn't compare an implicit warranty to a choice of venue.  I would compare
> a disclaimer of an implicit warranty to a choice of venue.  The implicit
> warranty itself is imposed by law, but the disclaimer is imposed by the
> license.  
>
> Think of it this way:
> Normally you could sue because of breach of an implicit warranty.  However,
> because there is a disclaimer, you're not allowed to do this.
> Normally you could have a lawsuit in a more convenient venue to you.  However,
> because there's a choice of venue clause, you're not allowed to do this.
>
> In both cases, if the clause was not in the license at all, you get to do
> something that you can't do with the clause present.  They both seem to be
> costs, in a sense.

The law that creates the warranty also allows its disclaimer; it
allows a developer to refuse the cost that the law incurs.  In that
way, the disclaimer reverts the cost balance to its state in the
absense of the law.  This is distinct from a choice-of-venue clause,
which creates a new cost that did not exist before the license
existed.  The licensee's cost under choice-of-venue also did not exist
before the law describing personal jurisdiction.

I understand your position, but think (for both moral and pragmatic
reasons) that it is not correct to take an implied warranty as the
origin state.

Michael Poole