Squeak Licence and Debian and Apple and Skolelinux

Ross Boylan RossBoylan at stanfordalumni.org
Wed Mar 24 18:01:25 UTC 2004


On Wed, Mar 24, 2004 at 07:31:39AM -0800, Alan Kay wrote:
> I'm curious about "the problem of the indemnification clause". All it 
> says it that Apple can't be held responsible for whatever happens. 
> What is the problem there?
> 
> Cheers,
> 
> Alan

It says a lot more than that Apple isn't responsible.  The synonym for
indemnify is "pay" in one dictionary I checked.  Thus the clause,

 5. Indemnification. You agree to indemnify and hold Apple harmless
from any and all damages, liabilities, costs and expenses (including
but not limited to attorneys' fees and costs of suit) incurred by
Apple as a result of any claim, proceeding, and/or judgment to the
extent it arises out of or is connected in any manner with the
operation, use, distribution or modification of Modified Software, or
the combination of Apple Software or Modified Software with other
programs; provided that Apple notifies Licensee of any such claim or
proceeding in writing, tenders to Licensee the opportunity to defend
or settle such claim or proceeding at Licensee's expense, and
cooperates with Licensee in defending or settling such claim or
proceeding.

has the following, potentially highly expensive, sense as part of its
meaning:

"You agree to idemnify ... Apple ... from any and all ... costs ... to
the extent it arises out of ... the operation, use, distribution or
modification of Modified Software."  Notice also the later material in
the clause involves you having to defend (i.e., pay for lawyers) or
settle (i.e., pay the party bringing the suit) against claims.

It seems fuzzy what is Apple's and what is Modifications; I assume
that basically everything has been modified since Apple set it loose.
So I think there's an argument that someone who takes the basic squeak
distribution and makes it available is distributing "Modified
Software" and might be on the hook for this clause.  Debian packaging
clearly modifies the software, and so there would be an even stronger
case for Debian liability.

As you are probably aware, the attorney's fees in defending against
even a frivolous action can be substantial.  And, though the license
seemingly shields against liability, who knows?  Suppose someone used
squeak as part of their pacemaker, and 100 very rich individuals died
and sued the company, which turned around and sued Apple?  Or 1,000's
of children played with squeak, and then some of their parents claimed
it had damaged their brains and sued for all their lifetime's of lost
earnings?  These are both silly and both unlikely to get very far, but
as you pointed out elsewhere, nobody knows for sure til the case is
brought and the court has ruled.

This is consistent with Apple's interpretation of the license; see
http://lists.debian.org/debian-legal/2001/debian-legal-200110/msg00028.html,
I've added that to the swiki on licensing
http://minnow.cc.gatech.edu/squeak/159 along with a signed paragraph
on the indemnification clause.  That paragraph says

"I think the preceding paragraph [saying indemnification is about
holding harmless] is misleading. Clause 3 is intended
to keep Apple from being sued; Clause 4 is intended to limit the
damage to Apple if 3 fails. The indemnification clause (number 5), as
the name implies, is about you paying money to Apple if they run into
trouble and you had anything to do with it. See the link a bit
below. --Ross Boylan."

It's really very unfortunate.



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