[lsb-discuss] LSB conf call notes for 2008-07-30

R P Herrold herrold at owlriver.com
Mon Aug 11 10:40:51 PDT 2008


On Fri, 8 Aug 2008, Theodore Tso wrote:

> I will have the Linux Foundation lawyers take a quick look 
> over it, but I don't see anything highly objectionable in 
> it.  Yes, there's an NDA; once you download the TCK, you 
> can't share it with anyone else. We've always known the TCK 
> was "free as in beer", but not Free Software.

more than an NDA is there ... one undertakes to grant an 
indemnification.

> As far as the indemnification clause, it merely says that 
> you are responsible for any damages caused by your OS. 
> That is, if you distribute an OS, people should be sueing 
> *you*, not Sun.

I carefully did not characterize what it might say, nor what 
might happen under that clause, but only pointed out what 
words were there.

> If they try to sue Sun, you promise to defend Sun.

and that alone is enough to 'kill the deal' from my point of 
view.  Certainly CentOS carries no insurance against such a 
risk to pay such defense costs; nor, I suspect does Debian

> To take a concrete example, let's take a hypothetical 
> situation ...

No, let's not.  I clearly stated MY concern areas.  Argue your 
mitigating example elsewhere as a warm and fuzzy hypothetical 
is just not relevant.

> ...  Of course, that's just the facts of life in our 
> extremely litigious society; you expose yourself to 
> liability whenever you do anything at all, it seems --- 
> including serving hot coffee.  :-)

Joke, pontificate, and add smileys on your own account.  I 
think this is a real issue, and one that the LSB needs to ** 
not ** casually require of a entity seeking to be confirmant.

Until and unless you or the LSB are willing to assume the risk 
and costs of mounting a defense and the costs incident 
thereto, the exposure is real.  Sun _can_ choose to drop the 
mentioned clauses, or narrow their scope [I shall seek this 
from them], but until and unless they are so removed, the 
issue remains.

The expense of defense have to come out of someone's pocket, 
or a Plaintiff will likely be in a circumstance it will be 
seeking to obtain a default judgment.  See, e.g.,
    http://arstechnica.com/news.ars/post/20060915-7757.html
An amateur playing lawyer may well have inadvertently 
subjected Spamhaus to the jurisdiction. of the federal court 
in question's.

> It should further be noted that FSF's own copyright 
> assignment has similar indemnification clause.

I am aware of no requirement for any FSF assignment to be 
executed, by a proposed conformant distribution on the part of 
the LSB.  The FSF issue is not in scope here, absent such. 
Please let me know if I have missed such a requirement.

> So if you are claiming that Sun's indemnification clause 
> requesting that you take responsibility for your own code is 
> somehow evil, then you must also be claiming that the FSF's 
> very similar request in their copyright assignment form is 
> also evil.

I do not recall using the word: evil, nor even characterizing 
it negatively.  As a JAVA shareholder, I want them to profit 
mazimize; as a FOSS community member, I hope for the boon of 
removal of restrictive license clauses.  Please do not 
bootstrap yourself into 'winning' some war of words, as my 
concern was raised as a debating society matter, and remains, 
quite serious.

-- Russ herrold



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