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Posted to legal-discuss@apache.org by "Geir Magnusson Jr." <ge...@apache.org> on 2005/04/25 19:12:21 UTC
interpretation of ALv2, section 9
Section 9 of the ALv2 says :
9. Accepting Warranty or Additional Liability. While redistributing
the Work or Derivative Works thereof, You may choose to offer,
and charge a fee for, acceptance of support, warranty, indemnity,
or other liability obligations and/or rights consistent with this
License. However, in accepting such obligations, You may act only
on Your own behalf and on Your sole responsibility, not on behalf
of any other Contributor, and only if You agree to indemnify,
defend, and hold each Contributor harmless for any liability
incurred by, or claims asserted against, such Contributor by
reason
of your accepting any such warranty or additional liability.
I just had someone claim to me that their lawyer interpreted this as
meaning that if they offered indemnification to their customers, they
would be responsible for defending all Contributors for any liability
or claims by anyone, not just their customers, and thus were about to
embark on wholesale replacement of Apache java code (until the issue
rendered moot for other reasons...)
I thought it strange - that to me (a non-laywer), this states that you
won't either pass through claims to contributors and/or will defend
contributors in case the party receiving the warranty from you decides
to use your warranty as a basis for going after the Contributors.
However, if I do mentally "tilt" my language interpreter a little, I
can see how they might be confused...
Just wanted to report this here for comment.
geir
--
Geir Magnusson Jr +1-203-665-6437
geirm@apache.org
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Re: interpretation of ALv2, section 9
Posted by "Roy T. Fielding" <fi...@gbiv.com>.
On Apr 25, 2005, at 10:12 AM, Geir Magnusson Jr. wrote:
> Section 9 of the ALv2 says :
>
> 9. Accepting Warranty or Additional Liability. While redistributing
> the Work or Derivative Works thereof, You may choose to offer,
> and charge a fee for, acceptance of support, warranty, indemnity,
> or other liability obligations and/or rights consistent with this
> License. However, in accepting such obligations, You may act only
> on Your own behalf and on Your sole responsibility, not on behalf
> of any other Contributor, and only if You agree to indemnify,
> defend, and hold each Contributor harmless for any liability
> incurred by, or claims asserted against, such Contributor by
> reason
> of your accepting any such warranty or additional liability.
>
> I just had someone claim to me that their lawyer interpreted this as
> meaning that if they offered indemnification to their customers, they
> would be responsible for defending all Contributors for any liability
> or claims by anyone, not just their customers, and thus were about to
> embark on wholesale replacement of Apache java code (until the issue
> rendered moot for other reasons...)
That's stupid. If they offer blanket indemnification to their
customers, then obviously they have indemnified their customers.
What they are then responsible for is any suit against a customer
due to using the software (that's what indemnification means here) as
well as any suit against a Contributor due to that warranty being
offered. That means suits from the customers that are due to the
warranty, because no other entities would have a basis for a lawsuit.
They can narrow their risk further by narrowing the indemnification
to specifics, such as a warranty of the customer's right to use
and redistribute a specific version for any claims of infringement
that apply to the software alone, not in combination with any other
software.
> I thought it strange - that to me (a non-laywer), this states that you
> won't either pass through claims to contributors and/or will defend
> contributors in case the party receiving the warranty from you decides
> to use your warranty as a basis for going after the Contributors.
Because then you need to know German law to understand why that
might cause our contributors to be financially liable to their
customers just because they are reselling our software in Germany.
[Similar things apply to other countries, but Germany is one
where a company cannot both offer a good for sale and disclaim
warranty and liability for that sale, or something to that effect.]
In other words, they are responsible for the ramifications of
their own business decisions. We are only responsible for what
we decided to distribute.
> However, if I do mentally "tilt" my language interpreter a little, I
> can see how they might be confused...
It says "by reason of your accepting any such warranty or
additional liability". That should be understood by any attorney
to exclude the liability of the Contributor that existed prior
to the grant of additional warranty.
....Roy
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RE: interpretation of ALv2, section 9
Posted by "Noel J. Bergman" <no...@devtech.com>.
IANAL, but:
You agree to indemnify, defend, and hold each Contributor
harmless for any liability incurred by, or claims asserted
against, such Contributor by reason of your accepting any
such warranty or additional liability.
So we are talking about liability incurred by a Contributor by reason of the
distributor offering a warranty. Without the distributor accepting
liability, there would be no liability, since otherwise the license
disclaims all such. Therefore, only those with whom the distributor enters
into a contract providing "support, warranty, indemnity, or other liability
obligations" is entitled to the consideration. And those would be the
distributor's customers.
--- Noel
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Re: interpretation of ALv2, section 9
Posted by Jeffrey Thompson <jt...@us.ibm.com>.
Geir,
I'm not sure how to tilt myself like that. The language refers to
liability or claims created "by reason of your accepting any such warranty
or additional liability." It seems to me that only your customers that
have the benefit of your warranty could make any claim "by reason of" it.
If an unrelated third party made an indemnification claim, the Contributor
would point to the standard AS IS language, wouldn't they?
I don't see the other interpretation, but maybe that's my lack of
imagination.
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
"Geir Magnusson Jr." <ge...@apache.org>
04/25/2005 01:12 PM
To
legal-discuss@apache.org
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Subject
interpretation of ALv2, section 9
Section 9 of the ALv2 says :
9. Accepting Warranty or Additional Liability. While redistributing
the Work or Derivative Works thereof, You may choose to offer,
and charge a fee for, acceptance of support, warranty, indemnity,
or other liability obligations and/or rights consistent with this
License. However, in accepting such obligations, You may act only
on Your own behalf and on Your sole responsibility, not on behalf
of any other Contributor, and only if You agree to indemnify,
defend, and hold each Contributor harmless for any liability
incurred by, or claims asserted against, such Contributor by
reason
of your accepting any such warranty or additional liability.
I just had someone claim to me that their lawyer interpreted this as
meaning that if they offered indemnification to their customers, they
would be responsible for defending all Contributors for any liability
or claims by anyone, not just their customers, and thus were about to
embark on wholesale replacement of Apache java code (until the issue
rendered moot for other reasons...)
I thought it strange - that to me (a non-laywer), this states that you
won't either pass through claims to contributors and/or will defend
contributors in case the party receiving the warranty from you decides
to use your warranty as a basis for going after the Contributors.
However, if I do mentally "tilt" my language interpreter a little, I
can see how they might be confused...
Just wanted to report this here for comment.
geir
--
Geir Magnusson Jr +1-203-665-6437
geirm@apache.org
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