Comment by daxelrod | Hacker News Reader

Comment by daxelrod | Hacker News Reader

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> There's not much preventing me from re-assinging copyright to myself (in countries that allow it) and then suing the original creator.

In what jurisdictions would that be interpreted as copyright reassignment? I can see how you might argue that "re-assign copyright to myself" is WTF you want to do, but the onus is on the creator to assign copyright to you.

> There's nothing to stop me from taking your code, re-licensing it under say a proprietary license, then suing the original creator.

Suing them for what? There's nothing to prevent you from suing pretty much anyone, for any reason, including any of the other licenses. Second of all, if you're saying there's nothing preventing your suit from being successful, I still don't understand on what grounds. It doesn't matter what licence you've relicensed under if the original author holds copyright.

> There's nothing that stops me from taking your project's branding/symbol/graphics/name and claiming it as my own and then suing you.

You could do this no matter what the license. What about the WTFPL would make your lawsuit any more successful than any other licence?

> There's nothing that stops me from taking your work and then not providing attribution back to the original creator.

This is fully within the intent of the WTFPL.

> By default there is nothing that absolves the license holder from warranty nor implied fitness for use.

You have a good point that this is something many people would want. Do you know in which jurisdictions this is actually needed? I wasn't able to find any sources for this.

> Has it been challenged before in a legal sense? Has a lawyer reviewed it?

Excellent points.

Okay, lawyer time. Some of these concerns are overblown, some aren't.

First, the license grant is clearly ambiguous. Most license grants are written in terms of exclusive rights of copyright (ie reproduction, derivative work creation, public performance). This one isn't. "Do whatever the fuck you want' is unclear as to exactly what rights you can exercise and can't, because "whatever you want" can be found to not literally be "whatever" (and in fact, when most people say "you can do whatever you want", they often mean "whatever you want within reason")

Maybe a judge will agree with "it means all of them", maybe they won't. It depends on the situation. I wouldn't want to bet my life on it. Damages would likely be minimal in such a case, except in places with high statutory damages awards. You might get enjoined from using it.

Second, As for reassigning copyright, probably not. In most jurisdictions, this requires a specific signed instrument.

Third, you can't put it under a new license and sue the creator, they also have rights to it.

Fourth, "You have a good point that this is something many people would want. Do you know in which jurisdictions this is actually needed? I wasn't able to find any sources for this."

At the very least, in the US it's a very bad idea not to disclaim warranties. Particularly since people are making warranties on mailing lists as to fitness, etc, all the time.

I can't stress enough how dangerous it is to not disclaim warranties in the US.

> Has it been challenged before in a legal sense? Has a lawyer reviewed it? Excellent points."

OSI declined to name it an open source license, considering it mostly duplicative of others.

I specifically try to push people to avoid it, and the company i work for won't distribute software that uses it.

> I can't stress enough how dangerous it is to not disclaim warranties in the US.

Can you offer some specific examples where an open source software project has suffered harm as a result? I generally trust your judgement, but would like to see the details.

I also appreciate the lack of IAALBTDNCLA in your post, although it might seem at odds with the disclaimer of warranties you advise. Is this omission a considered decision?

"Can you offer some specific examples where an open source software project has suffered harm as a result? I generally trust your judgement, but would like to see the details."

Not yet, but only because WTFPL is the only license i'm aware of that does not disclaim warranties, and it isn't all that popular.

I can offer plenty of examples of regular old sales without them that have gone bad. I can also offer examples of cases where judgement went for the defendants because the warranties were disclaimed.

As an aside, the WTFPL has a suggested warranty disclaimer in the FAQ, which is probably not effective in some places, which is even worse :(

I don't know if cases that involve an actual sale of a good are parallel enough to draw conclusions. I'm particularly looking for case law regarding implied warranty in the absence of a sale. My suspicion is that the disclaimer is an odd side effect of the desire to create a transaction so as to have an enforceable contract. In the absence of a sale or contract, I'm not sure what warranty would be construed. While false claims might cause damage, it seems like these might be issues even in the presence of a disclaimer.

So, there is a definitely a contract, regardless of sale. This much is 100% certain (no court has otherwise sold). If the question is "can there be implied warranties on stuff given away for free", the answer is definitely "yes"

In that sort of case, the only question is one of "damages", not of "validity of claim"

> So, there is a definitely a contract, regardless of sale.

How? Where is the mutual consideration? WTFPL looks like a gratuitous license, rather than a contract.

> If the question is "can there be implied warranties on stuff given away for free", the answer is definitely "yes"

The usual implied warranties of concern are implied warranty of merchantability and implied warranty of fitness for a particular purpose; the former only applies when a good is sold, and even then only when it is sold by a merchant in the class of goods to which it belongs. And the latter applies again only with a sale, and only when the buyer relies on the seller's selection of the good for a purpose identified by the buyer, or at least known by the seller before selling the product to the buyer.

"How? Where is the mutual consideration? WTFPL looks like a gratuitous license, rather than a contract."

So if i understand your argument, because you are required to do nothing under the license, it is not a contract for lack of consideration?

If so, this is an interesting argument.

Let me turn it around then: Why, in your view, do most public domain dedications then include disclaimers of warranty (including CC-0), if they are pointless?

As for the second, A. A vast number open source projects are sponsored or sold by merchants in the class of goods to which it belongs (consultants, companies people selling things on app stores, etc) B. You can sell something for zero dollars. C. For fitness, I specifically mentioned representations often made on mailing lists (IE as to whether the software would work for a given person)

The gratuitous license argument is interesting (though from what I can tell, legal minds greater than mind still feel the urge to disclaim warranties in that case), but the contract/sale one is just completely uninteresting to me, given the lengths courts have gone in the past.

> So if i understand your argument, because you are required to do nothing under the license, it is not a contract for lack of consideration?

Yeah, that's like the first week of Contracts.

> Let me turn it around then: Why, in your view, do most public domain dedications then include disclaimers of warranty (including CC-0), if they are pointless?

Standard-form gratuitous licenses (incl. public domain declarations) often are written under the assumption that the transfer of the covered work may occur as part of a sales transaction (e.g., sale of media containing the work) from the licensor to the licensee, which is a situation in which implied warranties may be applicable.

WTFPL is absolutely not suited for that use case, at least on its own, though nothing prevents you from including both the WTFPL and a warranty disclaimer.

> B. You can sell something for zero dollars.

You can't have a sale without a contract, and while you can have a contract without money changing hands, you can't have a contract with an intended two-way exchange of obligations. One party merely offering a limited waiver of some of its exclusive rights without asking anything in return that it wouldn't be entitled to anyway isn't a two-way exchange of obligations.

> The gratuitous license argument is interesting (though from what I can tell, legal minds greater than mind still feel the urge to disclaim warranties in that case), but the contract/sale one is just completely uninteresting to me

I don't think you understand -- they are exactly the same argument. A sale involves a contract. A license without a contract is gratuitous.

You can't be interested in the argument of whether p is true but not be interested in the argument of whether ~p is true.

"Yeah, that's like the first week of Contracts."

Now you are just being a dick. I"m trying to be nice here and make sure i understand your argument. In most cases, courts won't look at consideration at all, and outside of the US, whether consideration is required at all varies.

" you can't have a contract with an intended two-way exchange of obligations. "

This is false, of course. You can have unilateral contracts accepted by performance of something that a contract requests, contracts implied in fact, contracts implied in law, and all sorts of interesting quasi-contracts, plenty of which still have warranties.

But that's also "first week of contracts".

"I don't think you understand -- they are exactly the same argument. A sale involves a contract. A license without a contract is gratuitous."

Not in all cases, actually, but if you are going to act like you have above, i'm not horribly interested in continuing the conversation, we'll just see what happens when someone gets sued over the WTFPL.

> " you can't have a contract with an intended two-way exchange of obligations. "

> This is false, of course.

Except, not.

> You can have unilateral contracts accepted by performance of something that a contract requests,

You can have contracts accepted by performance as described, but they aren't unilateral. Acceptance by performance is a mechanism for demonstrating acceptance (hence the name) of a contract offer with mutual obligation while simultaneously fulfilling some or all of the obligations on one side.

> contracts implied in fact,

Which are contracts where the acceptance of mutual obligation (and perhaps the actual content of the mutual obligation) is inferred from non-verbal communication, not an exception to the requirement for an intended two-way exchange of obligations.

> contracts implied in law, and all sorts of interesting quasi-contracts,

quasi-contracts are another name for implied-in-law contracts, which are not actual contracts, but equitable arrangements; given the nature of the equitable basis for these -- particularly the direction they run -- it would be odd to see implied warranties, or even some equitable analog, mattering to them except to reduce liability that might be due to the provider. But equity can be be weird, so I wouldn't rule it out entirely that there might be some relevance there.

> But that's also "first week of contracts".

Indeed.

While it's true that courts have held that open source licenses are enforceable (or at least not held to the contrary), I presume this is because of the specific way that each license is crafted.

Since the license wants to be enforceable, it goes out of its way to create a contract. Are you saying that the simple statement "Use this as you see fit" would also be held to be a contract, even in the absence of consideration? If so, why all the convolutions and verbiage in the current licenses?

And getting back to disclaimer of warranties, what about the absence of any stated license? Do you feel that a disclaimer of warranty is no more or less necessary with a license than without?

How about DBAD?

http://www.dbad-license.org/

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