On Wed, 31 May 2006 20:58:18 +0200 Adeodato Simó wrote:
[...]
> 2. License Terms.
[...]
> (iii) Recipient hereby indemnifies SGI for any liability
> incurred by SGI as a result of the distri- bution of Accompanying
> Technology or the use of other license terms.
Danger: indemnification clause.
I'm not sure how far this can get. It seems it could become onerous...
If Recipient is compelled to pay what should by law be payed by SGI,
this is non-free...
[...]
> 6. Compliance with Laws; Non-Infringement. Recipient shall comply with
> all applicable laws and regulations in connection with use and
> distribution of the Subject Software, including but not limited to,
> all export and import control laws and regulations of the U.S.
> government and other countries.
[...]
Does this mean that I must comply with U.S. laws and regulations even if
I live in Italy?
If this is the case, I would say the clause is non-free.
[...]
> 7. Claims of Infringement. If Recipient at any time has knowledge of
> any one or more third party claims that reproduction, modification,
> use, distribu- tion, import or sale of Subject Software (including
> particular functionality or code incorporated in Subject Software)
> infringes the third party's intel- lectual property rights, Recipient
> must place in a well-identified web page bearing the title "LEGAL" a
> description of each such claim and a description of the party making
> each such claim in sufficient detail that a user of the Subject
> Software will know whom to contact regarding the claim. Also, upon
> gaining such knowledge of any such claim, Recipient must conspicuously
> include the URL for such web page in the Required Notice, and in the
> text of any related documentation, license agreement or collateral in
> which Recipient describes end user's rights relating to the Subject
> Software. If Recipient obtains such knowledge after it makes Subject
> Software available to any other person or entity, Recipient shall take
> other steps (such as notifying appro- priate mailing lists or
> newsgroups) reasonably calculated to provide such knowledge to those
> who received the Subject Software.
This, in part, is somewhat similar to MPLv1.1, clause 3.4.(a).
That was a lawyerbomb at best. It requires at least clarification from
licensor.
It was discussed back in 2004 on this list.
The draft summary claimed it was non-free:
http://lists.debian.org/debian-legal/2004/06/msg00221.html
MJ Ray didn't quite agree, but stated it was a lawyerbomb:
http://lists.debian.org/debian-legal/2004/06/msg00514.html
But the present clause seems to go beyond and require the publication of
a web page.
As Nathanael already pointed out, it's a fee.
As a consequence, I would conclude that the present clause is non-free.
[...]
> 10. 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 SGI and
> its successors and assigns harmless from and against any loss,
> liability, damages, costs or expenses (including the payment of
> reasonable attorneys fees) arising out of (Recipi- ent's use,
> modification, reproduction and distribution of the Subject Soft- ware
> or out of any representation or warranty made by Recipient.
This adds up to the previous indemnification clause, it seems.
[...]
> 12. Miscellaneous.
[...]
> This License shall be governed by and
> construed in accordance with the laws of the United States and the
> State of California as applied to agreements entered into and to be
> performed entirely within California between California residents.
Choice of law, which is usually acceptable.
> Any
> liti- gation relating to this License shall be subject to the
> exclusive jurisdic- tion of the Federal Courts of the Northern
> District of California (or, absent subject matter jurisdiction in such
> courts, the courts of the State of Cali- fornia), with venue lying
> exclusively in Santa Clara County, California, with the losing party
> responsible for costs, including without limitation, court costs and
> reasonable attorneys fees and expenses.
Choice of venue, which is non-free.
> The application of the United
> Nations Convention on Contracts for the International Sale of Goods is
> expressly excluded. Any law or regulation that provides that the
> language of a contract shall be construed against the drafter shall
> not apply to this License.
[...]
This is similar to CDDLv1.0, clause 9.
As I stated back in september 2005 in
http://lists.debian.org/debian-legal/2005/09/msg00206.html
the license claims to have the Power To Nuke Laws(TM).
I don't know if this is enforceable, or not. But it doesn't sound good.
--
:-( This Universe is buggy! Where's the Creator's BTS? ;-)
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