Free licenses and warranties [LWN.net]

Releasing a work - be it code, words, sounds, or images - under a free license is not just a matter of tossing in a file called COPYING and putting up a tarball. It is a legal decision which may have long-term implications. For an example, consider this discussion on the warranty provisions of the Creative Commons licenses.

The Creative Commons offers several licenses to fit different people's wishes regarding attribution, commercial use, and derived works. They range from being very GPLish, to something that looks vaguely like the BSD license (though rather more complicated), to others that would not be considered "free" by most in the community. One thing they have in common, however, is a fairly strong warranty provision:

By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:

Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;
The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.

In other words, when you release a work under a Creative Commons license, you are making a promise to any potential user that nobody else has any rights to that work that could require payments from that user. This is a warranty: should a third party come to one of your users for royalties or damages, they can come back to you. Releasing a work under one of these licenses means taking on a legal liability.

This feature of the Creative Commons licenses is deliberate: it is intended to give users of CC-licensed works confidence that they can truly use and redistribute those works without getting into trouble. This sort of language is not uncommon; anybody who has had a book published, for example, has signed off on a warranty that is at least as strong as the CC licenses require. But some authors who release under a CC license may not understand the commitment that they are making. The Creative Commons folks will apparently be making some changes to make the warranty commitment more clear.

What about other licenses? The GNU General Public License is clear that the covered works come (in capital letters) "WITHOUT WARRANTY OF ANY KIND." Other common licenses, including the Apache Public License, the Artistic License, the BSD License, the Mozilla Public License, and others all include warranty disclaimers. The Open Software License, instead, reads:

Licensor warrants that the copyright in and to the Original Work is owned by the Licensor or that the Original Work is distributed by Licensor under a valid current license from the copyright owner.

In other words, authors using the OSL are taking on a warranty obligation. The GNU Free Documentation License, interestingly, states only that any warranty disclaimers must be preserved. Authors releasing under that license should probably add an explicit statement of their warranty position.

Of course, no warranty disclaimers will keep you out of trouble if a litigious third party decides that you are distributing their intellectual property. For example, should SCO manage to prove in court that the famous "printer on fire" kernel message was stolen by IBM and placed in the Linux kernel, the fact that the relevant code was released under the GPL (if it was) will prevent other Linux distributors from suing IBM, but will it not help against SCO.

Regardless of disclaimers, anybody distributing material under a free license had better be sure that they have the right to do so. Once that is done, however, it is worth being aware of just what sort of warranty you are promising people who are making free use of your work.

to post comments

Not so fast

Posted May 8, 2003 16:21 UTC (Thu) by JoeBuck (subscriber, #2330) [Link]

SCO distributes the Linux kernel, and continues to distribute it to this day. They do so under the GPL. By continuing to distribute the Linux kernel even after they have allegedly discovered that it contains their code (a claim that I am skeptical of), aren't they releasing the "tainted" code under the GPL? They would still have a damage claim against whoever allegedly "stole" the code, but how can they block anyone from redistributing what they distribute? It seems that if they make any such attempt, they are in violation of the GPL, and they forfeit their right to distribute the Linux kernel.

Free licenses and warranties

Posted May 8, 2003 16:30 UTC (Thu) by JoeBuck (subscriber, #2330) [Link]

Another point: while the GPL itself contains a "no warranty" provision, contributors to FSF software such as GCC sign a contract with the FSF that does contain a warranty, specifically that the contributor is the sole copyright owner of the contributed work. The FSF also obtains disclaimers of rights from the employers of contributors. Here's an example of the language:

Developer is not obliged to defend FSF against any spurious claim of adverse ownership, but will cooperate with FSF in defending against any such claim and will indemnify FSF for all losses if the claim is not spurious, i.e. if the adverse claimant is a true owner and FSF is thereby damaged, including but not limited to the amount of all adverse damage judgments and costs of litigation.

It is possible that Linus Torvalds may come to regret his decision not to follow the FSF's example here, and instead attack it, since by giving up protection of this type he might be found personally liable for someone else's copyright violation.

Free licenses and warranties

Posted May 9, 2003 0:41 UTC (Fri) by sethml (guest, #8471) [Link] (3 responses)

The article excerpts from the Creative Commens license warranty sections:

By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:

Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;
...

Suppose I release some code under this license, and a patent holder subsequently decides that use of my code violates their patent. Then does the warranty entitle the users of the code to sue me for the patent licensing fee? If so, this seems rather problematic, since "reasonable inquiry" into software patents is a very difficult thing to do, especially if the patent is granted after the software is written. Any license mavens care to comment?

Free licenses and warranties

Posted May 9, 2003 23:25 UTC (Fri) by giraffedata (guest, #1954) [Link] (2 responses)

Yes, you're right. I am incredulous that this license contract (and others alluded to in the article) have such a ridiculous warranty. Considering that the licensor is probably getting next to nothing in exchange for the license, this is an outrageous amount of warranty to give.

A sane license contract would contain a warranty that the licensor knows of no patents, copyrights, etc., but not that they don't exist.

Free licenses and warranties

Posted May 12, 2003 18:39 UTC (Mon) by donstuart (guest, #4550) [Link] (1 responses)

To my non-lawyer eyes, that is exactly what the license says. Doesn't the phrase "to the best of Licensor's knowledge after reasonable inquiry" mean that a plaintif would have to prove that the Licensor either knew of a problem or did not make "reasonable inquiry"? Granted that "reasonable" is one of those words that make lawyers rich, this is still not a very strong statement.

Free licenses and warranties

Posted May 15, 2003 23:38 UTC (Thu) by eread (guest, #1918) [Link]

The problem that I see (my eyes are a little lawyer-ish - IANAL) is the "best of the Licensor's knowledge after reasonable inquiry" would make an potential argumentative point and drag people through litigation.

I think you sum it up with: "Granted that "reasonable" is one of those words that make lawyers rich". Why leave the hole open? Why risk that an inferior-court judge is going to rest his decision on that point? Then appeals happen etc etc etc. In cases I have read, stranger things have happened (albeit famous cases of judicial ineptitude ;)