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> 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.

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...

[2] http://www.adamsdrafting.com/all-capitals/

The all-caps is because of conspicuousness, yes, but there are other requirements.

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.

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.

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?

"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)."

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.

> 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.

IANAL - could you explain what you mean by this?

Sure: Apache grants a patent license and a copyright license. The patent license (but not the copyright one) terminates if i sue you. So right now the situation is:

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)

Ah, I see the distinction that you're making, though I would disagree with the statement that the latter situation is "better".

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.

You gave them software for free, it's not clear what legitimate grounds you want to accept liability for, but that's up to you :)

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.

Nevermind, I just re-read the text of v2, and it seems more limited in scope that what I previously thought.

> 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.

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).

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.

If a warranty disclaimer from another well-vetted license were used in the WTFPL, would that solve most of the problem? (Sans the judge ruling that it's only limited to reasonable things.)

Mostly, but at that point, why use it? Why not use MIT without the copyright notice reproduction clause?

It would be

1. Better written

2. As easy to understand

3. Well tested and effective.

>there will be arguments over what you were allowed to do

much like the GPL then

In my experience, most of the people arguing over it haven't read it (or don't understand basic copyright concepts). It's a pretty clear license...but, it gets talked about a lot by folks who misrepresent it, either willfully or out of ignorance.