On Sat, Feb 23, 2013 at 8:41 PM, Richard Fontana <fontana@sharpeleven.org> wrote:
On Sat, Feb 23, 2013 at 04:40:03PM -0500, Pamela Chestek wrote:
> Warranty and Limitation of Liability: You've tried to carry these down to
> distributors, but what if the distributors don't want the advantage of the
> clauses? What if, as my business model, for a fee I am offering a warranty and
> a higher limitation of liability that you have offered?  Maybe add a "unless
> waived" provision?

The GPL (v2 and v3, at least) has language to that effect, both in the
disclaimers themselves and in the basic distribution provision. I took
the latter language out early on as -- I thought -- stating the
obvious. I'd kind of ignored the fact that the disclaimers say "EXCEPT
WHEN OTHERWISE STATED IN WRITING" because I mostly scrapped the GPL
versions in favor of models from other licenses.

The reason I carried them down to distributors is the assumption that
in the usual case the mere redistributor should benefit from them (or
shouldn't be expected to make the effort of applying its own
disclaimers, though that's likely to happen for commercial
redistributors anyway). Do you believe the license prevents a
downstream licensee (mere redistributor or otherwise) from departing
from the effect of the clauses in a way that would be to the detriment
of such downstream licensee?

I assumed it was obvious that you can offer a warranty in the same way
that it's obvious (or so I believe) you can offer support or other
forms of service.

Hmmm, I suppose not.  It would require some sophistication on the part of the entity offering the warranty, though, to expressly state that it was intentionally abrogating the license in this way -- and I doubt that an unsophisticated entity would be offering this service, so no harm.  But assuming it was an unsophisticated entity who offered the warranty, if the license isn't specifically referenced you may end up with dueling agreements and therefore interpretation problems. 

But I think what's more problematic is whether the attempt to offer the warranty would be considered imposing an additional restriction--I hope not, but nevertheless you are introducing a situation where you are forcing people to say "this part of the copyleft-next license doesn't apply here." I think it's probably better as a policy matter to avoid those situations, particularly where it's easy enough to just say "except where otherwise stated in writing."

Pam