[antlr-interest] submission of patches, fixes, other contributions

Gerald B. Rosenberg gbr at newtechlaw.com
Tue May 31 16:51:54 PDT 2005


At 03:06 PM 5/31/2005, Brian Smith wrote:

>On 5/31/05, Loring Craymer <Loring.G.Craymer at jpl.nasa.gov> wrote:
> > "Thou shalt not wittingly enable a lawsuit" seems a fair
> > restriction on contributors.
>
>I agree, but the proposed terms are much more strict than that. The
>proposed terms state that a contributor has to pay for all defense
>costs in all lawsuits, whether or not they knowingly created that
>situation, and even whether or not the lawsuit has any basis or not.

Yes, this is the perennial problem of where best to stick the 
liability.  With the person who trips over a sprinkler head on your front 
lawn?  You could sue them, but how do you parse it if at the time they were 
a guest at your party.  The underinsured or uninsured motorist who swerves 
into your car trying to avoid a little kid chasing a ball into the 
street?  Sue the kids parents?  How about the bicyclist and your 
car.  Doesn't matter who hit whom, the car's driver is always taken to be 
at fault.

We face tremendous risks just driving to work and back each day.  Most 
never consider them, or if they did they would never drive.  In truth, the 
real risk is quite small.

Even so, risk liability usually works out to being borne by those most able 
to minimize or prevent the act in the first place.  In your car, you are 
presumed to be accepting the risks of just being there, even if "there" is 
at the end of series of events that you had no affirmative control 
over.  There are special cases - paramedics, police officers, etc. where 
the societal equities outweigh the normal placement of liability.  Maybe 
free software contributors should be an equally protected class.  Until 
then, they are the gatekeepers in the best position to determine the likely 
risk not only to themselves, but to the entire community -- a community 
that repeatedly demonstrates a willingness to fully participate in the 
decision-making just for the asking.  You are not alone.

Finally, the costs of an unfounded lawsuit are placed by the court on the 
loser, not the defendant/contributor.  And, if you did not knowingly create 
the problem -- someone else gave you the software to contribute after 
fraudulently removing the license markings -- then they are (predominantly) 
liable.  Of course, you would not think to bring a stranger's suitcase onto 
an airplane, why would you think to contribute code that you were not 
entirely sure of the origins.  If you wrote it, then you know the 
derivation and the risks to you and the community.

Maybe this is all obvious/lengthy/pedantic, and if so I apologize.  It is, 
however, the basic message I give to companies that are considering 
bringing some "free" software tool in-house: that contributors tend to be 
extremely conscientious about what they put their name to in making a 
contribution and that there is a non-transferable and often un-quantifiable 
risk just for participating.


----
Gerald B. Rosenberg, Esq.
NewTechLaw
285 Hamilton Avenue, Suite 520
Palo Alto, CA  94301-2576

650.325.2100  (office)  /  650.703.1724  (cell)
650.325.2107  (facsimile)

www.newtechlaw.com


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