[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
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.
285 Hamilton Avenue, Suite 520
Palo Alto, CA 94301-2576
650.325.2100 (office) / 650.703.1724 (cell)
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