Squeak Licence and Debian and Apple and Skolelinux

Alan Kay Alan.Kay at squeakland.org
Wed Mar 24 18:28:54 UTC 2004


Hi Ross --

The OSI likes the current Apple Open Source License: 
http://www.opensource.org/licenses/apsl.php . This happened quite a 
few years after Squeak left Apple and Steve went back to Apple.

Do you?

Cheers,

Alan

At 10:01 AM -0800 3/24/04, Ross Boylan wrote:
>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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