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Comment by thrtythreeforty | Hacker News Reader

Would it be possible to provide software under a license which is only valid if the manufacturer cannot be held liable for defects? That is, just turn the problematic scenario into copyright infringement.

Seems to me this would be perfectly enforceable in the US, but EU laws often feel like they'd rather force software authors to take on liability and not be able to opt out of the whole problem. I'm unfamiliar with this area of law.

I'm unsure if this modification would still qualify as Free software (as defined by FSF)... It would seem to interfere with Freedom 0 in a way that isn't really obvious. The legal environment would constrain what the software could be used for, because the license would terminate in case the author would be liable for defects.

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One can argue that this is implicit in FOSS licenses, including the GPL. If the author can be held liable for any defects, then they can't really share their contributions, and FOSS contributions would only be possible by entities with well-paid lawyers. This is against the spirit of both Open Source and Free Software.

Furthermore, similar clauses have existed for patents. E.g., if you use an Apache licensed library, but sue one of the contributors for patent infringement having to do with the library in question, then any grants of the Apache license terminate, so you can then be countersued. The way you framed your text, this would qualify as an interference with Freedom 0, as you can't eat your cake and have it too.

Lest we forget, here's what the MIT license, one of the most permissive ones, have to say:

"THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE."

So the MIT license already says what you think is against Freedom 0.

Agreed so far, but in the US that clause is enforceable and doesn't affect the ability to use or run the software, only the ability to receive support for it. My understanding is that any such disclaimer by businesses in the EU is not enforceable due to this new law. As someone who wouldn't want to accidentally be on the hook, I'd want a license which precludes uses where the law would kick in - but that is a restriction on use.

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