Ross, 

Disclaimer:  I am not a lawyer. 

Just another thing to consider:   The "by using this software, you implicitly 
accept the  terms of the license" is a genereally baseless and unenforcable  
claim.  The most strongly enforcable contracts are those in  writing, signed by 
both parties.  Lower in strength would be  "verbal contracts", and they are 
quite difficult to enforce  without credible witnesses to the verbal agreement. 
Somewhere  lower in strength would be "You used my software, so I assume you  
saw, read and agreed to the terms of the license."  It is  nearly impossible for
a claimant to prove in a court of law that a  user of the software was in any 
way aware of the license or it's terms. 

The only true test  here is to put something "out there" and see if anybody sues
 you.  If you use anything created by a third party in the  creation of your 
product, you are automatically assuming liability for  these third party 
elements.  For example, people tend to sue  automobile manufacturers for damages
as a result of failure of some  component of the automobile, but auto 
manufacturers are star examples  of "outsourcing-in-action".  If you aren't 
comfortable  with the quality of your product, don't "put it out there"  and 
expose yourself to associated the liabilities.  It is  perfectly reasonable for 
Apple (or anyone else) to say that they are  going to hold you responsible for 
any harm that you cause to come to  them.  It is reasonable for them to hold you
responsible even if  they don't say that they will. 

I firmly agree with the position Alan Kay has indicated many  times (i.e. Don't 
worry about it.).        

            -Dean 




Ross Boylan <RossBoylan_at_stanfordalumni.org>  
Sent by: squeak-dev-bounces_at_lists. squeakfoundation.org 

03/24/04  05:09 PM 
Please respond to  The general-purpose Squeak developers list            
   
To:        squeak-dev_at_lists. squeakfoundation.org  
  cc:        Ross Boylan  <RossBoylan_at_stanfordalumni.org>     
Subject:        Re: Squeak Licence and Debian and Apple and  Skolelinux 


On Wed, Mar 24, 2004 at 11:35:38AM -0800, Alan Kay wrote:
>Ross -->>

The problem is that all of this is  essentially ridiculous, because >
there is no way to prevent  anyone from suing anyone, regardless of >
the disclaimers. So  coming up with doomsday scenarios is not at all >
helpful, and  simply puts more of a scare into people who are easily >
scared.>

This is true, but incomplete.  It is true  that anyone can sue anyone
for any reason, and that no license can  protect you completely from
that.

Your statement is  incomplete because it avoids the fact that under the
squeak  license, if someone sues Apple for whatever reason related to
squeak, you explicitly give Apple the right to drag you into it.
This puts anyone who accepts the license at a particular risk they
would not otherwise have.>

None of the licenses that are  accepted by the OSI give anyone >
protection from any suit. 

I suspect none of them explicitly open the licensees up to  liability
either.>>


In any case, it would be  nicer if the BS was BS that scared people >
less regardless of  the actual facts and actual legalities.

I meant my examples  more as jokes, but clearly the lawyers who drafted
the clause put  it there for a reason, and anyone who takes it
seriously has some  basis for being concerned.

Free + a potential time bomb  <>free>>

I hereby (legally) resign from this  thread.>

OK, taking you off the distribution list, though  I'm kind of hoping
you'll see this. :)>

Alan

Some of the problem is a general cultural issue of law vs business  or
most other activities.  Lawyers are paid to worry about  the outside
chance, even if most of us think that's silly.   While most of us
consider the probabilities, lawyers tend to  think more in terms of the
possibilities: anything that might  conceivably happen should be dealt
with.  Perhaps because my  father was a lawyer, I tend to take
contracts pretty seriously.   And, though I personally am pretty
comfortable using squeak  because I recognize the chance I would get in
trouble is tiny, I  really don't think organizations can be so casual.