However, the number of people who come out and bawww about not picking a more widely recognized license (generally, LGPL or BSD) is disappointing; folks, if you want good licenses, you have to set an example.
I implore my fellow developers to use this wherever feasible--show some guts.
Worse, it does not effectively disclaim liability for the software developer. He claims he doesn't want "obnoxious things", such as "reproducing a huge disclaimer that is written in all caps".
The reason that all caps language is used is because of a history of court decisions and laws around what is required to effectively disclaim implied warranties. Right now, the license does not properly disclaim any implied warranties, which puts the developer at risk.
Worse than this, the text block he suggests putting in text if you want to disclaim warranty (http://www.wtfpl.net/faq/) would likely be ineffective in a lot of places.
I know everyone likes to think they won't get sued. But it does happen. It will wipe you out. It isn't worth taking a moral stand against a few lines of text in a source file.
To answer your other point, if you want good licenses, you have to actually know what the hell you are doing.
I really do understand that people want to not have to give a shit about this stuff, and have simple and clear licensing. Really. But this is not the path to accomplishing that.
The legal and political world takes a long time to adapt. Things like like free and open source software will eventually be sanely handled in the law. WTFPL is not going to be anywhere in that history.
much like the GPL then
It would be
1. Better written
2. As easy to understand
3. Well tested and effective.
Just trying to learn a bit about US law here. This part intrigued me, and from what I've Googled so far, it's because of a requirement for the warranty to be "conspicuous". [1][2] Is all caps the most commonly accepted minimum as advised by lawyers (especially when they're advising business types who couldn't care less about putting it in red or bold or something else)?
[1] http://www.mslater.com/post/104847-why-are-warranty-disclaim...
UCC, for example (most contracts/licenses for software would fall under UCC, rather than common law), says basically (I'm pasting a capsule summary from a case book, i can cite the underlying provisions in the actual code, but this summary is accurate):
First, the seller must clearly and explicitly do so at the time of contracting by using words that communicate the risks that fall on the buyer.
To exclude the implied warranty of merchantability, the language of the disclaimer must mention “merchantability” and, if written, must be conspicuous.
To exclude the implied warranty of fitness, the exclusion must be in writing and be conspicuous. Thus, fine print disclaimer may be inoperative.
If an express warranty is also given, words or conduct relevant to its creation and words or conduct tending to negate or limit a warranty must be construed whenever reasonable as consistent with each other.
Any words of disclaimer or modification of warranty should be strictly construed against the seller. In general, words or conduct tending to negate or limit a warranty are inoperative to the extent that construction is unreasonable.
You've hit it on the head--unfortunately, what else are we to do?
I don't trust the general legal intuitions of ourselves and our peers, since we seem to be so rubbish at creating a useful legal and political climate for our industry (based on ~30 years of case law).
So, in the meantime, let's instead live in our ideal world, pull no punches, and cross the legal bridges when (and if) they come up. Perhaps a proper rallying will be tenable then, instead of us all being chickens.
As for licenses, I think Apache currently is best for "serious grown-up usage", no, what with the patent indemnification and all, or am I misinformed?
This is entirely because of the penchant for the average software/etc engineer to stick their head as far in the sand as it can go, and then complain that this is ineffective. It is only in the past few years that this has changed, and headway has already started to be made behind the scenes.
"As for licenses, I think Apache currently is best for "serious grown-up usage", no, what with the patent indemnification and all, or am I misinformed?"
This is, IMHO, correct. The only downside to apache is that the defensive patent termination clause only terminates patent rights. If there were no patents on the software, and they sue you over patents, they can go right on using it. Sadly, it's not possible to make a license that does terminate both copyrights and patents on being sued, and still hae such a license be GPL compatible.
IANAL - could you explain what you mean by this?
You license your stuff under apache.
It has no patents on it.
I sue you for patent infringement.
I can still use your stuff, since the only thing that got terminated was the patent license I had received. There are no patent rights, so nothing was really terminated. So in effect, I can sue you without worrying about how it impacts my ability to use your software.
This is true of most current open source licenses, btw. Suing does not terminate anything.
A better situation would be: Apache grants a patent license and a copyright license. Both patent and copyright license grants terminate if i sue you for patent infringement.
Then it would be
You license your stuff under apache.
It has no patents on it.
I sue you for patent infringement.
I can't use your software anymore.
The problem is such termination clauses are at the very least GPLv2 incompatible (They have been tried). Because everyone wants license compatibility, and people like GPLv2, nobody can really make this situation. In fact, it makes the situation worse.
Worse than this, what ends up happening, often, is that Apache 2 projects (which provide some protection at least if you own patents, since you can countersue) get pressured by GPL projects to move to a less protective licenses. See, e.g., https://github.com/twitter/bootstrap/issues/2054
This was, IMHO, a bad move for the Bootstrap project (full disclosure - the company I work for refused to let Bootstrap relicense the code we contributed because we viewed this as harmful to the open source ecosystem. This is/was drupal's problem, not Bootstrap's, and you shouldn't make a bad licensing decision to make up for another)
If I'm release software with that clause, I'm in a position to take advantage of anybody who uses the software, because they would have to cease using it before they could sue me, even on legitimate grounds.
That said, I'm not surprised that you (as a lawyer) would prefer the latter; it exposes your client to less liability, and lawyers tend to be very risk-averse, for obvious reasons.
Given the "get sued by people over patents for releasing popular open source software" occurs very often for companies that deal with open source software and have money, ...
As for risk aversion, I am probably one of the least risk averse lawyers you will meet.
My goal in this case is not to protect my clients, my goal is to see the open source ecosystem stop being destroyed for dumb reasons.
> If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.
I was also trying to thing of some pathalogical edge case in which I release something under an Apache license in order to preempt a lawsuit that I've infringed on someone else's patent... but I guess that doesn't make sense, since that would require that they accept the terms of the license to begin with.
So, I guess that's not really as much of a problem as I thought.
The DWTFYWT license is better in this respect than MIT/BSD/Apache?
Edit: Or is worse enough that it'll help bring about a revolution? I'm … skeptical.
"Welp, we can't buy that house we were saving up for 15 years for, because I decided i wanted to take a stand and use the WTFPL". No offense, really, but that's not chutzpah, it's stupidity.
Everybody who does software would prefer a better, less legally climate, and yet few seem willing to put skin in the game.
A better question is this: since we seem hellbent on not having any sort of accredited professional status, why are we surprised that this is an issue?
Tell this to the java model railroad guy.
A single person who never expected to be sued over open source model railroad software.
He in fact, spent over 100k on the defense, AFAIK, and it did in fact cause him serious financial hardship. This is despite the fact that his lawyer (a wonderful woman) was doing the best she could to keep his costs down.
You know, I was expecting to be really really sad reading that.
Like, I pictured a really nice old dude with a big white bushy beard and conductor's overalls and a blue hat crying as he had to sell off his pike to pay legal fees against some overzealous corporate lawyer, only to pass away a few weeks later from diabetes (his now-grown children laying in his coffin the one train car that escaped the lawsuit-caused liquidation of assets, a reminder of better times).
Instead, I found a tale of people being assholes to each other over copyright and patents and cybersquatting--further evidence that we should re-examine all those things.
Again, so happy to be wrong.