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Examining Software Liability In the Open Source Community
snydeq writes "Guidelines from the American Law Institute that seek to hold vendors liable for 'knowingly' shipping buggy software could have dramatic impact on the open source community, as vague language around a 'free software' exemption could put open source developers at litigation risk. Meant to protect open source developers, the 'free software' exemption does not take into account the myriad ways in which vendors receive revenue from software products, according to a joint letter drafted by Microsoft and the Linux Foundation. As such, the guidelines — which, although not binding, are likely to prove influential on future lawsuits, according to attorneys on both sides of the issue — call into question the notion of liability in the open source community, where any number of coders may be responsible for any given defect."
Only if they know who you are =)
Otherwise they can send their complaints to your gmail.com account.
If you don't like the open source software the the license that goes with it already.
I am sure hell is frozen now.
"NO WARRANTY OR GUARANTEE IS IMPLIED. USE THIS SOFTWARE AT YOUR OWN RISK" or some combination of that. Even my home server says that every time I SSH into it.
So.....you're going to sue a developer for a defect, intentional or not, even though they said it was not warrantied and use at your own risk?
import system.cool.Sig;
Bug free software is possible, it's just very very expensive to produce!
I've worked on DoD projects that required bug free software. It is possible, it just requires $150 Million to produce 100,000 lines of code.
Do you really want to force Microsoft or Apple to produce bug free operating systems? Who could afford them?
And so does every bit of commercial software. How do you differentiate?
Another stupid babysitter law to protect idiots.
At a previous job I asked my boss why we used Oracle and he said that if anything ever went terribly wrong, the company would have someone to sue. Of course, suing someone doesn't restore customer confidence, data, or revenue. No verifiable technical reason, just that OUR lawyers got warm and fuzzy with contractual language that would never, ever get exercised and if it ever did try to sue anyone we'd have run out of money before they dipped into their free soda fund.
Anything that executes code is buggy. Applications, frameworks, libraries, protocol stacks, drivers, bios', FPGAs and microchips. Grow up and deal with it.
I'd say that ye olde standards of gross negligence and recklessness should cover any profoundly careless bugs.
The trick is to get them to apply to corporations like MS.
First point, if someone working for hire at Red Hat, Novell, or IBM knowingly (how's that defined?) ships buggy open source software, why shouldn't the company be held liable, if they would be held liable for shipping buggy closed source? Second point, who is going to sue some no-name contributor who doesn't have any money anyway, especially if you have to prove that that particular developer knew there were bugs? I love open source, but I feel that if we as a community want to be taken seriously, we should be held to the same standards as closed source software.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Vendor liability for software is a good idea only in *very* limited fields, with *very* strict parameters. If the problem domain allows for exhaustive testing (every possible input, every possible code path), then this sort of liability is reasonable. Embedded control software for vehicles is a good candidate. But to apply the law to general purpose computers like we would for mechanical devices is absurd. They aren't a monoculture; they can run anything, which means anything can break them. Every general purpose OS out there suffers from the occasional crash (Windows, OSX and *NIX included), and the very nature of the machine means that you can't always determine the cause. If one kernel level process writes into the memory space of another, overwriting pointers and code, the eventual crash will appear to be the fault of the innocent process (after all, it tried to dereference null). The forensics required to assign blame unquestionably would cost more than the lawyers would.
Much like patent law, this is one field where hardware can go that software should not.
$_ = "wftedskaebjgdpjgidbsmnjgcdwatb"; tr/a-z/oh, turtleneck Phrase Jar!/; print
Other than the fact that people hate software bugs, which is fair; but insufficient reason, why should a general liability be presumed to exist?
For software purchased as a custom/customized enterprise type setup, with guys in suits, and contract negotiations, and spec documents and whatnot, surely the parties involved can settle any questions of bugs, liability for bugs, responsibility for timely fixes, etc. as a matter of contract between themselves. Perhaps it would be convenient for a de-facto standard set of terms to exist; but I don't see why any legally binding assumption needs to be made, beyond what was specified in the contract.
For the consumer/shrinkwrap/non-custom stuff, I'd be strongly in favor of a right to return for refund if defective(though deciding exactly what level of buginnes qualifies as "defective" could well be tricky, and settling the issue of whether or not "being able to run on joe sixpack's box-o'-spyware-and-rootkits or timmy the tweaker's bleeding-edge-super-nlite-professional-l33t-3dition-h4x0red-windows-box" is actually a reasonable expectation could be a nuisance); but liability beyond that, unless actual damages can be demonstrated, seems unreasonable.
Already, if software is being used as a component of a system(medical, aviation, whatever) where bugs matter, it is subject to those standards, establishing a set of liabilities for software generally just seems like a good way to encourage ever more onorous disclaimer contracts and quash free/OSS/cheap software.
That's the weasel word to generate extra lawyer business. Scumbags.
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
I'm not anti-FOSS in any way, I'm just wondering why it would be exempted...
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There are things that can't be warrantied away like that(and in some cases, this is a good thing; but; I just don't think that software is one of them). "Delicious candy may contain succulent lead, eat at own risk, non-toxicity not warrantied" would not make selling tainted food any less problematic.
How about these for new liability guidelines: if the vendor knowingly ships buggy software, the customer is entitled to a 100% refund on the license cost.
[Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
IANAL - NDIPOOT (Nor Do I Play One On Tv) From the Article: A key passage -- Section 3.05 (b), if you want to look it up -- says that user agreements contain an implied warranty that purchased software "contains no material hidden defects of which the transferor [the seller] was aware at the time of the transfer." What's more, no matter what language the vendor places in the user agreement, the warranty still stands. Wouldn't this make it tough to ship a product at all? The code base would have to have no known defects (bugs) regardless or scope or scale of the bug/defect. I'm assuming a material defect would just be a defect or some part of the code that doesn't do what it's supposed to do. I suppose you could just publish a list of known "usability enhancements",but even that at it still seems like a huge burden to place on the developer. What about when issues come up once a product ships? The products that ship after the discovery but before the notices can be updated would be in breach of this "recommendation".
Shop smart, Shop S-Mart.
No but seriously, considering the amount of money and effort being shelled out to patch software this really doesn't seem plausible. So long as development is beholden to short-term corporate profits, bugs will never go away.
Could this be worked around with some language in the license along the lines that 1. We disclaim liability. 2. If such a disclaimer is not valid in your jurisdiction, we do not extend you license to use this software?
-Peter
While a number of coders could be responsible for a software defect, it would be the responsibility of a given software project to correct that defect in a timely and effective manner. The reliance on an open source application can be guaranteed in part through support contracts, but simple ethics would dictate that the developers should hold themselves accountable for the final product. I wrote an essay (Liability, Reliability, and Safety) that briefly touches on this topic back in 2007.
One point that I argue is "[c]ompanies must constantly look at their level of liability and manage the reliability and safety of their systems. Spinello discusses some issues of reliability such as software 'bugs' which are an inherent problem with any piece of software and are to be expected, within reason. However, the programmers of the software are expected to assume the responsibility for providing fixes for the bugs and improving upon the existing code."
The problem lies in defining what "knowingly" means. After all, "software vendors know that the nature of software guarantees a certain amount of bugs thereby raises the risk to the vendor. However, it is not unreasonable to expect that any crippling system bugs would be removed from the final release product. Asking software vendors to assume some liability would help to drive the quality of the software upward."
Ironically enough, I ask the question at the close of my arguments: "From a legal perspective, the United States has some way to go to resolve the problem of liability, especially in the software industry. Software products and systems are not only used to process secure transactions and enable consumers to manipulate data, but they are also used in environments where human lives are at stake and sensitive private data is handled by many different people at all hours of the day. Negative feedback has been proven to work less effectively than positive feedback when dealing with the human psyche, but should software vendors be offered incentives to provide better offerings and assume more liability, or should they be forced to accept a minimum level of responsibility by law and an increasing amount of accountability based upon the industry and the application of the product?"
So, in the case of open source software, should an application targeted at the medical industry be more liable than an application that serves personal media on the Internet? While I would like to see more open source software used in more organizations, I believe that as things stand now, service level agreements and quality of support on standard platforms play a large role in determining whether or not to use an open source application.
As for the risk of litigation,where does the onus of responsibility fall when there is no corporate entity? Does the owner of the individual project become the liable one?
I suspect that in commercial software, there is an implication of warranty (because the customer paid for it), and that warranty can't always be signed away by a contract (because of things like consumer protection laws).
I would think that if a piece of software is free as in beer, it would be easy to explain to a judge that the project authors had no business relationship with the user, and thus could not be held liable.
It's sort of like the "I am not your lawyer, this is not legal advice" disclaimer--the person giving advice is less likely to lose a malpractice suit if he/she says "I have no business relationship with you, so don't take this with the same gravity that you might take my real legal advice."
A cat can't teach a dog to bark.
Oh, and I'm not a lawyer. And if I were, I probably wouldn't be you lawyer. In which case this would not be legal advice...
A cat can't teach a dog to bark.
Just add a stipulation for software that has source code available as exempt.
Or add an exemption to any company that gives a list of known bugs at release. If they blatantly say they know something is buggy, then that would be fair to me.
-SaNo
Well hell there goes the Video game industry.
No more just ship it and we'll patch it later mentality. Because at that point you "knowingly" shipped product with defects.
Either that or Quality Control esting will drop to Zero and bug databases will get wiped right before shipping.
Does this mean that if someone informs a vendor of a bug in their software they immediately have to prevent all downloads and inform retailer to remove the product from their shelves until the bug is fixed and replacement software can be shipped ?
Does anyone have a link to the full text of these guidelines ?
Comment removed based on user account deletion
You should really change your MOTD to something more interesting.
Send bug reports directly by email to managers in Microsfot and Red Hat. Make them "know" the defect. That will level the playing field.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
Most software ships explicitly without any warranty and says that it has no responsibility for lost data or corruption and such, wouldn't this negate any liability?
:(){
Every company I've worked for has knowingly released software despite KNOWING there are bugs. That's just the nature of the business. Get every single major bug fixed, bring low priority bugs down to a minimum and release. Open source or not, this is how it works. Sometimes the new features of a new version is more important than making sure a particular button in the UI is properly translated in the different languages you support. It's still a bug, and it was KNOWINGLY SHIPPED with that bug, but it wasn't worth the effort.
Sue happy lawyers will one day know what it's like when I litigate my foot up their ass.
I'm god, but it's a bit of a drag really...
Second point, who is going to sue some no-name contributor who doesn't have any money anyway, especially if you have to prove that that particular developer knew there were bugs?
Microsoft. That's who.
If it is possible to sue OSS for bugs, any vendor who feels they've lost business to OSS will be prone to suing OSS maintainers, if for no other reason than to cast FUD on free software, i.e. "Didn't they (the OSS developers) get sued for writing buggy software?"
Without the proposed legislation, such lawsuits are much more likely to be dismissed.
The society for a thought-free internet welcomes you.
This comes up every time warranty issues are raised. The problem is that for that warranty to be effective, the parties had to agree. Hence, those that say open source software is not an agreement (or that one does not have to accept the terms of the GPL etc.) have a problem. I've said it before, certain of the terms of the GPL are not merely license language. The community cannot have it both ways.
Either this clause in unenforceable because their is no agreement (one party did not agree to it), or the GPL requires every user to accept the terms of it.
Put the chair down, Steve.
Free Martian Whores!
Developers will now refer to "known bugs" as "software features that require coding improvement that will be patched at a later date" while "unknown bugs" will remain "undocumented software features"
1331461 is only semiprime *sigh* Alas - I am just short of 1337.
But if I just give away my leftovers from my restaurant to some soup kitchen free, would I still be liable? May be. If I give away left overs from my home to a passing vagrant would I be held liable? What if I brown bag my lunch and in the work place they order pizza for some reason and I give my brown bag to the homeless guy on the way to the trolley stop without even opening to check if the sandwich has spoiled, would I still be liable?
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
So.....you're going to sue a developer for a defect, intentional or not, even though they said it was not warrantied and use at your own risk?
No lawyer will sue individuals developers . . . they have no money. They will try to sue a big company, um, like what SCO tried with IBM. Lawyers go after the money.
Some big companies even forbid their programmers from working on Open Source projects on their own time . . . unless they are approved by their employer, of course. Because the lawyer suing will try to twist it so that the employer is responsible . . . because only a big company has enough cash to make it worth their effort.
Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
And no warranty or guarantee *SHOULD* be implied. Almost all software is buggy under the right circumstances, as even the best programmers can't interpret, test, and correct every possible scenario. To make things even more complicated, it seems that all but the most expert of users blame the wrong component for their problems, whether it be the OS, the OEM, or Republicans.
Very high end software intended for business with high priced monthly or annual service contracts? Yes, hold the company liable for software problems that cause a serious loss. But holding OSS to the same standards? They're out of their minds!!
I'm logged in, so IDK why that was posted anonymously. -_-
"NO WARRANTY OR GUARANTEE IS IMPLIED. USE THIS SOFTWARE AT YOUR OWN RISK" or some combination of that. Even my home server says that every time I SSH into it.
There is no reason that a legislature cannot pass a law saying that this disclaimer is contrary to public policy and won't be respected in the courts.
For instance, in my State, contracts to purchase a car that are "AS-IS" are not legal. You can write those terms into the contract and the buyer can sign it, but if she turns around and sues you the Court won't give effect to that part of the contract.
Another example, I cannot rent an apartment or house "AS-IS", I am required by law that my rentals conform to a general standard of habitability. It doesn't matter how many times in the rental contract I disclaim any warranty of habitability, I still have to provide a habitable dwelling.
Consumer protection statutes are full of these sorts of provisions that forbid the use of certain kinds of terms and conditions. You can't sell food without a warranty of non-contamination or edibility, you can't sell children's playground equipment without a warranty of safety, .....
TL;DR version: the law does not have to respect your right to contract under whatever terms you see fit (I'll leave the normative argument of whether it should for another time & place).
If you read to the end of the article, they are suggesting that instead of a law, what is needed might be agency regulation. I'm not really sure which of the two is more frightening, or more stifling for the industry...
I believe you would. I once worked in retail, and we couldn't give away food that was still in date and in good condition to food banks (but which for some reason or another we had to get rid of), because of liability concerns.
BTW Why are you quoting free software?
...technological process comes to a halt. Potentially, one could be faced with a perpetual software development project--deadline after deadline missed because of a 'known' bug. Of course, one could always forego QA testing so that bugs can get by 'unknowingly'. Granted, these are extremes, but still... get a clue ALI!
Good point, although I would changed it to "knowingly selling software with known bugs which are undisclosed". All the unknown bugs are obviously undisclosed, and you wouldn't want a software company fined because they didn't disclose bugs that they didn't even know about.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
State law in the US often directly mandates certain warranty conditions for sold products. There are certain warranties that cannot be signed away, disclaimer or no.
The question is what happens when an open source product is used in a sold product. Is the seller of the end-product solely liable, or is the producer of the open-source (and free) component also liable?
Everyone likes to pass the buck. If I successfully sue Sony because their battery melted my thigh, is the company they contracted to manufacture said battery also liable? Can Sony recoup their fines from the battery manufacturer, if the battery was not delivered to spec? For non-open-source software, they can. But say that Sony used a software controller for the battery that caused the meltdown, and that controller was open-source. Can Sony sue to recoup their costs from the authors of that piece of software, which was provided free-of-charge under an OS license, and was probably not developed specifically for Sony's specifications?
*The reason I use the Sony example is because when they had their battery problems, contributory liability was a subject of discussion here on Slashdot. I don't think the OSS liability issue was raised at all, it's just the best example that popped into my head.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
But why should the clause be necessary at all if the software was free-as-in-beer? If there is no consideration, there should be no obligation either; this is basic contract law.
Attempting to make people who give things away entirely for free liable for the consequences is a very dangerous path to tread.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Not all Open source software is free and in beer. The free as in beer model isn't even required for free software especially the GPL or BSD or similar licenses.
Every moderately complex piece of software has hundreds or (more typically) thousands of KNOWN bugs in it when it ships. The developers know this, because they try to fix all the *bad* ones before shipping it. Every large project I've worked on, had tens of thousands of bug reports in the bug tracking system. For example: our current codebase is a few million lines, and our bug tracker has 35,000 bug reports in it, of which maybe 1 to 2 thousand will be *known bugs* (but minor ones) that are fixed before we ship. This is entirely normal throughout the entire software industry, and useful software would simply NEVER GET SHIPPED if we didn't work like this. /shrug.
A few years ago I was on a team of 4 people that were part of a larger (approx. 200 people) product team at one of those big corporations everyone dislikes. Our component (with 4 people and a few hundred thousand lines of code) had maybe 300 or 400 known open bugs in it, when the product shipped. Which tells you very little about the overall quality of the project--most of those were very minor nits. We did fix around two thousand bugs (ranging from annoying to showstopper) in the months leading up to ship.
It is not an agreement. The GPL licence says:
==
9. Acceptance Not Required for Having Copies.
You are not required to accept this License in order to receive or run a copy of the Program.
==
Sure sounds like it, but i think the true intent here is to create a new market for 'software programming insurance' ( and government certifications and bonds that go with it ), which will be priced out of reach of the small hobby coder contributing to OSS or a small code shop trying to make a living in their tiny niche market..
And besides, what software doesn't have at least ONE bug in it?
---- Booth was a patriot ----
Not everything is given away free.
What about a project who used the GPL but charges for the product like Redhat enterprise server or something.
Programmers and Developers are generally safe from any lawsuits, as long as they follow CYA principles [ Cover Your Arse].
Engineers are other LICENSED PROFESSIONALS who USE said software above, are liable THEMSELVES.
Simple as that.
Any good engineer knows that software calculations MUST BE CHECKED, and they are liable for any defects THEY [not the software] cause.
I suspect that in commercial software, there is an implication of warranty (because the customer paid for it), and that warranty can't always be signed away by a contract (because of things like consumer protection laws).
I would think that if a piece of software is free as in beer, it would be easy to explain to a judge that the project authors had no business relationship with the user, and thus could not be held liable.
A business relationship does not require money to change hands. I suspect that like contracts all that is required is that both parties receive some sort of "consideration", http://en.wikipedia.org/wiki/Consideration. Consideration is obvious for the user(s), they get the software, but consideration for the author(s) could be quite varied. Passing along the author's work (as the GPL requires), reporting bugs back to the author, mere use of the software enhancing the author's standing in a community (or maybe just stroking the ego), ... I'm sure a real lawyer could get quite creative, as they have successfully done with consideration under contract law. Unless of course the legislation gives OSS authors a special status which they currently do not have.
That's why I said free-as-in-beer.
If you want to take money from someone, there is an expectation that what you're offering in return is of a reasonable standard. In software, expecting totally bug-free consumer software is not reasonable, but expecting that it doesn't (for example) silently install malware, trash all the other data on your hard drive, or contain known serious security flaws is fair enough. Whether the source for the software happens to be open is, IMHO, irrelevant to this, and Red Hat et al should be held to the same standard when they charge for software as Microsoft, Oracle or $OTHER_BIG_COMMERCIAL_ENTITY.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
IDK, my BFF Rose?
I can see it now....rogue programmers, up late at night working in secret groups on some highly illegal, highly explosive software. Their code may not be perfect but it's the illegal cool factor that makes it worthwhile.
import system.cool.Sig;
But thats the thing.. they are trying to get software developers accountable for bad software..
But its likely as with most attempts to make big business accountable.. This is nothing more than a PR campaign to give voters a warm fuzzy that the government is actually doing something for the people that voted for them.. The laws will be riddled with loopholes and ways for vendors to get out of being liable(Despite the fact it would be very hard to come up with something that would get "commercial" vendors to be more responsible with software releases.)
In the long run... its total waste of time with the excepting of giving the false impression that government cares about teh common person and not the big businesses that fund their campings to put the in power and line their pockets in some way.
Who needs WiFi when we can have Packet Over Sheep! http://datacomm.org/PoS-InternetDraft.txt
If there's no agreement, there's no warranty. If you accept the terms, there's no warranty. There's no attempt to have it both ways. The "NO WARRANTY" notice is just that, a notice, not an agreement. It may or may not have any effect; some implied warranties cannot be disclaimed. But for software which is free as in beer, there probably isn't any implied warranty.
I have written the bug free code:
print("hello world!");
it works, even on my toaster.
Queue comments pointing out special places where even this would break.
Belief? Hope? Preference?The Existential Vortex
Comment removed based on user account deletion
Unlimited liability for lawyers who make arguments which don't hold up in court.
You're right, I didn't really mean open source software. I'm talking about software that doesn't cost anything--freeware, essentially.
A cat can't teach a dog to bark.
It's Hero- It's a city named for the chancellor, much like Leningrad/Stalingrad (st pete's). Hirohito, whose first name was Steve by the way, still lives there to this day. He's like those crazy men you see on the streets, who still thinks it's 1945.
IANAL, but for a contract to be binding, there has to be "Consideration", which is something of value exchanged by each of the parties. In the case of open source, I don't think this applies, so you can't say there's a contract. There's only a license, and that license has terms. I guess it might get murky if someone took your code, improved it, and contributed it back to you directly (signing a joint copyright assignment form or something) because then you'd get back something of value. But that's stretching it.
There are other requirements, like "a meeting of the minds". You would have to prove that both parties agreed on a fundamental level to the essentials of the arrangement. There also has to be an "agreement", which is typically a signed contract, though an "oral" contract is supposedly just as good (I doubt it).
There's an interesting parallel in property law. If an intruder breaks into your home and your dog bites him, he can sue you. It doesn't matter if you put a sign up saying "beware of dog" or saying that you disclaim all warranty of safety. The only way around it would be to prove that you had taken reasonable measures to stop someone from getting hurt by your dog (why locking your door doesn't count, I'm not sure). Similarly, you can't "set traps" around your property to purposely injure a trespasser. As a property owner, you're expected to realize it's likely for there to be trespassers and you're expected to take reasonable precautions to protect them.
I'm not sure how that works in the software world. "Here's some code, you can play with it if you want, but I'm not responsible for anything that happens" seems like it should save you, but if you maliciously inserted a trojan horse ("set a trap") that makes the software self destruct the computer, then I'd assume someone could sue you. The question becomes what's "reasonable" protection for the consumer? Since the public expects that there will be some bugs, you can probably get away with a bug that causes the program to blue screen and they lost their last two hours of work, but if you have a bug that deletes the last year of work, and then goes and deletes the backups... well, I wouldn't be surprised if they were able to win a lawsuit, even if it was free software.
Building Reliable Software is possible, see TeX by Knuth.
At a previous job I asked my boss why we used Oracle and he said that if anything ever went terribly wrong, the company would have someone to sue. Of course, suing someone doesn't restore customer confidence, data, or revenue. No verifiable technical reason, ...
That's not true. If a company service fails its clients due to a database problem, and it becomes public knowledge that the database was OSS, there could be a downside for going OSS over Oracle. Fair or not, accurate or not, well informed or not ... the public at large trusts large commercial outfits like Oracle and are largely ignorant of OSS. Hostile lawyers or competitors could claim the company used "inferior" tech in their infrastructure, it could negatively impact sales. In the 60's and 70's there were various mainframe and minicomputer vendors, what was the popular saying: "No one ever got fired for buying IBM"? Its the same CYA behavior and it is not necessarily delusional.
Look at it another way, don't some vendor receive good karma when they tell a technically savvy audience they are using high reliability low cost OSS? The dark flip side is that some vendors receive good karma when they tell a technically unsophisticated audience that they are using the "brand name" high cost solution. So whether your company is being silly or not depends on the nature of its customers, the technical merits of OSS vs Oracle may not be a relevant factor. If customers are willing to pay for brand name warn fuzzy felling the company is probably doing the right thing.
Notice the "hidden" in there.
My reading of that is that the software vendor could just make their internal bug-tracker publicly accessible and they'd be compliant because the bugs would no longer be hidden.
The GPL is not an end user license. It forces absolutely no terms on the user of the software. The terms of the GPL apply only to the distributor of the software. You don't have to agree to the terms of the GPL in order to use the software, only to distribute it.
Attempting to make people who give things away entirely for free liable for the consequences is a very dangerous path to tread.
Barring malicious intent and conscious negligence, I agree.
Here's a point worth considering, the GPL, BSD, et al do not place any limits on the use of software, only it's distribution. Hence, it can be argued that there exists no usage relationship, only a distribution relationship. If a user gets in trouble for using gratis software, how can they claim a business contract? The other party has already disavowed any claim or contract for the purpose of using said software (and disclaimed damages).
(Obviously doesn't apply to Red Hat, Novel, et al where a monetary relationship and fitness-for-a-given purpose exists)
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
The fact is that capitalism, which seeks to promote efficient and desired activity through profit seeking, is completely incompatible with the legal system and judiciary which seek to arbitrarily impose non-natural constraints on behaviour.
FTA: Don't software buyers, both consumers and enterprise, deserve to get what they've paid for: software that solves the problem it was written to address?
Why, yes. Yes they do. MicroSoft, I am looking at you! Cough up for the last 20 years!
I'm assuming that the story can be taken at face value, that it applies to all bugs that cause the end user problems.
But then, this would not and should not stop at software. What about any other type of procedure that people devise to solve a problem? Medical diagnostic procedures for instance. If my cancer was not found because Professor X wrote the diagnostic procedure, and failed to allow for the symptoms being masked by the cold / indigestion / hangover that was affecting me at the time of diagnosis, should I be able to sue him?
Or perhaps a better example, if my lawyer lost a case for me because he did not allow for all possibilities in dealing with it, but could show that he followed standard guidelines; maybe I would have a case against whoever drew up the guidelines, and especially if it was the ALI that was responsible...
What about a project who used the GPL but charges for the product like Redhat enterprise server or something.
That's a commercial venture run for profit; shouldn't it get different treatment than someone releasing an OSS drawing app that they made for fun? Anyway, if you get support, there's an implication that the product is suitable for common server tasks.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
Crunchy frog? Cockroach cluster? Spring Surprise?
The problem is that everyone ships software with known bugs. The bigger the software, the more bugs.
A handy case in point is Windows - MS will release a version of Windows, knowing that they will be releasing hotfixes before it get's installed onto a single machine.
Any software company is going to release software knowing that bugs are in it.
So, are the going to sue everyone?
T.
The problem with the country is that there are obviously too many lawyers and right now the legal industry is utterly desperate. So they are thinking up new ways to try and sue people and going to lean on their puppets in Congress to promote those new kinds of cases just as much as the defendant's puppets in Congress will oppose them. Should be interesting to see how it all pans out, so long as, our puppets that are opposed to such lawsuits win.
This is my sig.
Not all Open source software is free and in beer.
I should think not. The last time I tried to download FOSS from a server that was in beer I kept losing the connection, and the time I drank beer with FOSS in it, was even worse.
Darl McBride, is that you?
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
As the American Law Institute appears to not hold with that belief, lets see how far they get in their goals WITHOUT ANY SOFTWARE! Ha ha ha ha ha ha ha ha ha!
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
That's presumably why he explicitly stated free as in beer, to make it clear that the issue isn't with open source software.
I mean, if someone is selling open source software, then why should they be treated differently to closed source commercial software? (Though as the letter suggests, there are worrying grey areas - it seems unfair if a hobby developer is liable because he runs an ad on the download website.)
If the software development interests are wise then they will learn from the example of the medical profession and what excessive litigation has done to doctors attempting to practice medicine under the weight of crushing malpractice insurance premiums. The attorneys out there would argue that we must be able to sue in order to recover damages, but in reality most of us pay extra for our health care every day on the off chance that we might one day be in a position to win the legal lottery with a favorable malpractice judgment of which the attorney will take 40%+ while the government taxes away most of the rest. Meanwhile, the attorneys continue extracting uncompensated value from society while everyone, with the possible exception of the attorneys, is worse off; and this is better for society how? No, we do not need the attorneys and their associated baggage in the software industry, it just isn't remotely worthwhile.
"Delicious candy may contain succulent lead, eat at own risk, non-toxicity not warrantied" would not make selling tainted food any less problematic.
Well it's all in the labelling isn't it - a court would argue that the wording still implies it's food ("candy"), it's meant to be eating ("delicious", "succulent") and that it's probably safe. Supposing instead you wrote:
"Substance that may contain lead" - if someone came along and ate it, would you be liable? I don't think so.
Products are sold for an intended purpose. If I drive a car on a road and it blows up, they're liable. If I drive it into the sea, they're not liable. If I buy a toy buggy and drive it on a road, they're not liable.
You see, the idea that software companies are held to a different standard to car companies (as the article claims) is a myth. Both are free to describe what purpose their product may be used for - it's just that for various reasons, companies are willing to sell you products to drive on the road, but very few companies are willing to sell you software that is guaranteed to work (they do exist though - if you're prepared to pay ten times the price).
Furthermore, I'm not sure your original example is correct - consider that putting "may contain nuts" is apparently enough to remove their liability should someone die from a nut allergy, whether or not the company has any clue that the product contains nuts.
If the broad "there is no warranty" messages are not enough to avoid liability, then the answer is simple: we have software licences that say "this software should not be used in any situation where any injury or loss may occur" (or perhaps, at all), or "this software may contain bugs". The point is that they'll all end up doing that, and we'll be in exactly the same situation as we are now. Obviously despite the warning, you'll still use the software - you'd still rather do the equivalent of eating a substance that may contain lead, because you're too cheap to pay the money that's needed to fund extensively tested bug-free products.
And if software companies were held to an higher standard than car companies, and not allowed to explain how their software may be used, then all that will happen is you can kiss goodbye to cheap software. Software prices will rocket, and it'll be fine for commercial software companies who can now charge loads of money. Well, assuming the industry doesn't collapse.
"Pretty much every EULA I've read states that you not hold the vendor accountable for defects in their software or any data loss of yours that occurs while using their software."
So what? It is not as if EULA writer was Yahveh and it was written on the Stones of Law. Since nobody gets to negotiate the terms of the EULA with the provider, the EULA itself is nothing more than a declaration of intentions on the provider's side. As such declaration of intentions it can obviously be overruled by laws and courts if/when "the other side" (the end user) finds it against his interests.
The problem is that for that warranty to be effective, the parties had to agree.
Right - they don't agree, there's no warranty.
Either this clause in unenforceable because their is no agreement
Even the GPL itself points out that this does not trump what liabilities may be dictated by law. It's just making it clear that no warranty is being offered. It's not an agreement, it's for informative purposes. As you say yourself, an agreement is only needed if there is a warranty being given.
"But if I just give away my leftovers from my restaurant to some soup kitchen free, would I still be liable?"
For sure. Just take to the extreme and see:
Your honour, I'm only a poor terrorist and all I did was provide anthrax *for free* via the water system to NY. It's not as if I made a profit out of it, is it?
"What if I brown bag my lunch and in the work place they order pizza for some reason and I give my brown bag to the homeless guy on the way to the trolley stop without even opening to check if the sandwich has spoiled, would I still be liable?"
So it was cocaine!? Your honor, I only took the brown bag from my godfather and passed it to the guy looking as a 50's gangster, but I didn't even opened it to see what was in the bag!
All in all, if you break it, you pay for it.
For instance, in my State, contracts to purchase a car that are "AS-IS" are not legal. You can write those terms into the contract and the buyer can sign it, but if she turns around and sues you the Court won't give effect to that part of the contract.
Of course you can - I can happily sell a device that looks just like a car, with wheels, can be driven, but make it clear that this is not intended to be driven on roads. If you do so, that's your problem.
Another example, I cannot rent an apartment or house "AS-IS", I am required by law that my rentals conform to a general standard of habitability.
Housing is a very special case (for good reasons - housing is limited, and it also makes good sense to give people rights for what is their home). On top of that, it's specifically renting that is an issue.
However, if I sell a tatty old tent, or shed, or whatever else, you can't sue me because it doesn't live up to some expected measure of housing.
You can't sell food without a warranty of non-contamination or edibility
But I can damn well sell a substance that would be inedible, and it's your own fault if you eat it.
The only issue here is to do with expectation of use - are the current disclaimers enough, or would they have to go further, and state that the software should not be used at all? Is there an issue with referring to it as "software"? (Perhaps calling something a "car" implies it can be driven on the road, OTOH, one can clearly use the term if it's otherwise clear it's not intended for that purpose, e.g., a toy car.)
Yes, you can't sign or agree away rights allowed under law, but since these disclaimers aren't contracts or agreements, that's not an issue. They're disclaimers - no different to the disclaimer that says that the "car" you bought is not intended to be driven on roads. If that's allowed for physical products, why should software be held to a different standard?
"Either this clause in unenforceable because their is no agreement (one party did not agree to it), or the GPL requires every user to accept the terms of it."
You didn't do your homework, did you?
Case 1) You don't want to accept the GPL: good to know, but then you have to abide by laws, IP laws. What can you do with a random piece of software you don't own an explicit rights grant from its IP holders? You certainly can't use it, copy it, modify it nor redistribute it. Since you can't use it, how do you expect to ask for proportional damages on its defects?
Case 2) You do accept the GPL: OK, now you can use it, modify it, copy and redistribute it but by you accepting the GPL you resign at the same time to ask for damages if things wreak havoc.
That's the way the things go. Of course, that doesn't preclude local laws from saying anything else. I.e.: I don't expect the GPL to be a safeguard if you on purpose write a piece of software that will make the user's home explode and transmit AIDS at the same time; local consumer laws may hold you responsible for unrelated unintentioned damages -my home is on fire because I used your GPL word processor, and even might hold you responsible for related unitentional damages -I lost one year of bussiness transactions I confied to this GPL RDBM), but that's local laws and local tribunals to say.
Doesn't compile. Prepare to be sued!
"The question is what happens when an open source product is used in a sold product. Is the seller of the end-product solely liable, or is the producer of the open-source (and free) component also liable?"
You sold it to me, you retaliate me. Full stop. (of course IANAL, so take my opinion at your own risk).
"Can Sony recoup their fines from the battery manufacturer, if the battery was not delivered to spec?"
Not. But Sony can certainly sue the battery manufacturer out of their own concerns by whatever it considers apropriate.
"Can Sony sue to recoup their costs from the authors of that piece of software, which was provided free-of-charge under an OS license, and was probably not developed specifically for Sony's specifications?"
Certainly yes. But that's not the question. The question is "can Sony win?" I don't think so. By not checking the software against their own internal specifications and not contacting the providers -which I'll suppouse acting on good faith, to see what can really be expected from the software, Sony is obviously failing on its due dilligence. It is not the same an end user agains a corp (which may have an extra protection through consumer laws) than a corp trying to go cheap and both laws and tribunals recognize the difference.
open source projects which have no assets will be judgement proof.
the code will morph to a different set of supporters.
you do not want to be a wealthy person hacking on the software however.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
Further to my earlier reply, I think another difference between software and physical products is that "bug" pretty gets used to describe anything that the software won't do, whether or not it's really a defect. This isn't the case with physical products - hell, we don't even have the word "bug" for physical products.
Consider, if I drive a car along a road, and it stops, or blows up, it's a bug. What if I drive it over a hole, or in muddy conditions, and I get stuck? Most people would say tough luck, it's a limitation of the car's capabilities. Yet when it comes to software, any situation where it breaks down, even if it's one the company never considered or tested, is a "bug".
In fact, even stupid or intentional malicious input is seen as a bug if it causes the software to misbehave. With physical products, if I take an axe to my car, they're not liable for it not working. If a thief breaks in, they're not liable (unless perhaps it's shown that it was a defect, e.g., the locks weren't working). But with software - if a hacker can exploit software with malicious input that it was never meant to handle, and where the software company never intended it to survive such an attack, it's seen as a "bug".
I think much of this is due to the fact that people see software as something that should be easy - it's only lines of code, not something that's difficult to construct like a physical product, so they think surely it should be easy to make, and fix any problems? In fact, the reverse is true.
Countless times I've seen physical products that flaws that allowed them to be easily broken, yet the assumption is always that you'd be stupid to do it. With software, the philosophy is that it should be so good that the user can't break it if they try.
That's what Microsoft and the Linux Foundation are fighting against: a recommendation that there be an implied warranty that cannot be disclaimed.
http://outcampaign.org/
Just because your boss didn't know why it does not mean the company is not the adequate one.
In most cases you use Oracle because its features and support, maybe your boss was checking how gullible you are.
IANAL but write like a drunk one.
But are lousy readers:
"seek to hold vendors liable for 'knowingly' shipping buggy software"
Do I need to explain what knowingly means?
How many /.ers complain bitterly about PHBs pushing software to users in full knowledge that it is not fit for purpose?
Those are the people that should be worried.
IANAL but write like a drunk one.
Without knowing the language it's hard to say that it's bug free. If it was C you're missing an #include (if as I say later it is printf you meant to use), a definition of main, it's printf not print, and what about the \n at the end of the string?
Besides it can't run on a toaster, toasters are mean to run AIs so they can determine the amount of toasty goodness you want to have every second of the day.
A lot of contracts all over the world have clauses which are unenforceable.
Employment contracts contain overly broad non compete agreements, stores claim they won't refund your money under any circumstances, companies deny liability for things they are liable for.
Just because software developers claim they are not liable, doesn't in any way mean that they are actually not liable. They're claiming it and hoping that it either isn't challenged or it stands in court. It might, it might not. Even contracts both parties discuss and sign cannot enforce an illegal provision. If I sign a contract selling myself, or someone else into slavery in a country where slavery is illegal, that contract isn't binding or legal. There are limitations to everything.
Well aside from the fact that the answer is probably "yes" anyway, TFA refers to software which is knowingly selling buggy software, which in your metaphor would be giving the homeless guy a sandwich you knew was tainted. If you knowingly gave the homeless guy a tainted sandwich and he died you'd not only be liable in a financial sense, you'd probably also be liable criminally.
The article quotes the requirement as being "contains no material hidden defects".
That idea would superficially (I am not a lawyer) appear to allow any open source off the hook as long as you have a public bug tracker.
There's always an agreement.
It may not be financial, and it may not actually be with the developer of the software, but there's always an agreement even if the agreement is implicit. I ask for a piece of software(by clicking on a url or whatever) and the distributor agrees to give it to me. I can tell they agreed to give it to me because the file started downloading. Presuming I haven't circumvented any security to access this link, and the distributor knows that the link is there, there is an implicit distribution agreement between myself and the party providing the software. Where that agreement exists, there exists the potential for liability. There's a question of course as to that liability transfers to the developer, but just because you got it for free and didn't sign anything doesn't mean there wasn't an agreement, and it's got nothing at all to do with the GPL. You could definitely make it a provision of a new GPL version that in order to distribute the software, you take liability, and protect the original developer, but I don't think that would work very well.
The reality of the situation is that people who provide software for a purpose are probably liable for ensuring that the software is fit for that purpose. There's almost certainly a lot of work that needs to be done to determine what level of bugs and what level of knowledge is required for liability and whether you can get explicit acceptance of known bugs as part of the distribution of a piece of software(in the case of bugs which are too expensive to fix) and to what degree. There may also need to be explicit protection for software provided gratis, but that would probably need to be an explicit exception to liability. Free as in speech makes no difference at all, only free as in beer.
Of course you can - I can happily sell a device that looks just like a car, with wheels, can be driven, but make it clear that this is not intended to be driven on roads. If you do so, that's your problem.
If it's a model that was road-legal, no you cannot. That is you can't sell your old beater Honda Civic if the seatbelts are broken, even if I want to use it as a bird house.
But I can damn well sell a substance that would be inedible, and it's your own fault if you eat it.
You can't sell rotten apples as "non-food-substance" no matter how many disclaimers you put on it.
Yes, you can't sign or agree away rights allowed under law, but since these disclaimers aren't contracts or agreements, that's not an issue. They're disclaimers - no different to the disclaimer that says that the "car" you bought is not intended to be driven on roads. If that's allowed for physical products, why should software be held to a different standard?
I should have stated it this way: there are some warranties that the legislature will not let you disclaim. The legislature is not required to respect every possible form of disclaimer.
thanks for the family reunion update, try not to knock up your sister again.
I would suspect you could sell the formerly street-legal car as scrap metal to a wrecking company, or rotten apples as mulch to a farmer, simply because entire industries would shut down otherwise.
If it's a model that was road-legal, no you cannot. That is you can't sell your old beater Honda Civic if the seatbelts are broken, even if I want to use it as a bird house.
You can sell a car without (or non-functioning) brakes as long as you disclose it.
It is not as if EULA writer was Yahveh
Shh. He thinks he his.
"NO WARRANTY OR GUARANTEE IS IMPLIED. USE THIS SOFTWARE AT YOUR OWN RISK" or some combination of that. Even my home server says that every time I SSH into it.
There is no reason that a legislature cannot pass a law saying that this disclaimer is contrary to public policy and won't be respected in the courts.
Indeed. In Finland, just about all such disclaimers are totally worthless. In particular consumer rights are defined in law and can only be extended by warranties, never reduced by disclaimers. Some rights can't even be signed away.
It's hi.rosh'ma. The 'i' is silent. And where's the infamy? They were warned and given a chance to prevent it.
People should not fear their government. Governments should fear their people.
Please mod parent up, he is exactly right. The GP says:
Even if that would be true for the GPL (or BSD/MIT licenses), the parties "agreeing" to anything are the distributor and his upstream. The end user does not enter into this agreement. Ever.
It's not an either/or because:
I can see the logic, but it's flawed. It's thinking of software like any other engineering. It's not. It's right on the edge of what our little monkey brains can deal with. The people for this are probably for big design up front, thinking software engineers have ignored everything from normal engineering. But this is not the case, normal engineering development models were the first tried. No development model works perfectly in software, I'm sorry, but there is no magic bullet. Software is not bridges or cars. We are left doing the best we can, which is iteration and test,test and test again. I personally feel that working openly gives the best results, i.e "with enough eye balls, all bugs are shallow", but the project needs critical mass before that kicks in.
You certainly didn't do your homework.
You certainly don't need an grant from the licensor to use a piece of software. And even if you don't (which you do), he gives you an impicit license by giving it to you.
And your "local laws" are almost universal, even more outside of the USA.
That is you can't sell your old beater Honda Civic if the seatbelts are broken,
You most certainly can sell a non functioning car. It happens all the time. People sell cars in all sorts of conditions to hobbyists who restore them or scrap yards that sell parts off of them. In my state, buyers often insist on a mechanic inspecting a vehicle first, since it's perfectly legal to sell one that doesn't pass the state's annual safety inspection. It isn't necessary for a car to have a windshield or brakes - let alone seatbelts - in order to sell it.
You can't sell rotten apples as "non-food-substance"
Rotten apples certainly can be sold and actually are for hog feed or making cider vinegar.
In most places, there is nothing wrong with selling something that doesn't work for it's primary purpose - as long as you don't mislead the buyer about the condition of the item. Yes, in most places there are warranties that you cannot disclaim. But if you warrant (claim) the apples to be rotten, you are certainly within the warranty.
Every time I hear the "Free as in beer" statement, I want to make a microbrew.
"FOSSter's - it's open source, for beer!
Random Thoughts From A Diseased Mind (Not For Dummies)
Differentiating it is the easiest thing in the world to do. So easy in fact, that and country and government can do it. Compare the advertising, to the warranty to the actual product. The lies will be pretty obvious and based upon the damage caused by the software, penalise them accordingly.
Now giving something away does not compare to selling it and there is a distinct difference between one product where the faults are not only hidden from public view they are in fact denied, over and over again versus the other product which is available for for public review and auditing.
In the case of open source the customer can review every line of code, nothing is hidden from them, they aren't even forced to do it on their own, in fact the whole greater community upon a global scale can review that code and anybody can access those reviews of that code as they are broadcast.
So there is a huge difference between closed source proprietary code that is sold and open source code that is given away. Really in point of fact with FOSS you are not so much giving away the application you are giving away the code behind the application and have access to review all faults known and unknown to the distributor of that software, a substantive warranty difference when compared to closed source software where you are selling the application not the code behind the application which is kept secret from you along with all it's faults known and unknown.
So in this case the FOSS people have made a major error in not differentiating between an application as the final product and the code for that application as the final product.Now add to that the all the commercial FOSS companies do not sell software they sell service and support, hence their underlying reasonable warranty requirements are bound to that only. Just to make it even trickier, I own a piece of every FOSS package out there even without writing one line of code, so do you and so does every one else, nobody at any time or in any way is excluded from accessing the product, the code, that they already technically own.
Chaos - everything, everywhere, everywhen
It comes down to irresponsible end users. If they are able to successfully sue an open source developer for a bug is besides the point. If the end user cannot comprehend use at your own risk, they are in much deeper trouble and the resulting lawsuit victory will not help them in the long run. Submit a bug report and be helpful about it. With bugs in open source software you can become the number one enemy of the developer(s) you sue, or you could potentially be credited in the subsequent release. Seems like a no-brainer to me...
Umm... no. You can't sell it without slightly more paperwork than a normal car sale, but you can sure as hell sell it with a junk/salvage title. And if the new owner makes it road legal again, they can get the vehicle re-titled.
So what do you do with rotten apples? You mean you can't sell them to someone who wants to make compost with them? I'd love to see you call the police on that sale. It's perfectly legal to sell things like that as long as you don't represent them as a food item.
Where do you get your information? And why were you modded up?
My blog. Good stuff (when I remember to update it). Read it.
"You certainly don't need an grant from the licensor to use a piece of software."
Good to know I can use as much copies of Windows as I want without a license from Microsoft. It's a pity the BSA doesn't seem to think the same.
"And even if you don't (which you do), he gives you an impicit license by giving it to you."
If that's the case which is not in the vast majorities of cases with regards to open source: most of the times it is not the provider giving it to me but I taking it (i.e. downloading) from the provider. A subtle but important difference.
Some rights cannot be signed away. What these guidelines are suggesting is that the right to a warranty against material defects that the developer KNOWS are in the software when you buy it is one such right.
I think that the general concept of these guidelines is sound, but that the folks who drafted them had an insufficient grasp of the issue. Hopefully they will refine them and we'll get something workable.
Don't you wish your girlfriend was a geek like me?
What about the idea of having the sale/download/use of the software conditional on agreeing
with a waiver of liability whose wording states that the user/purchaser recognizes that
software systems in general, and the software/system being downloaded/used in particular,
are inherently too complex to be able to provide any warrantee of correct operation or fitness for use.
The general truth of this claim can be inferred by taking a survey of any 100 real software products or
services which have been at version 1.0 or greater for more than a year,
and asking which of them have not had, since version 1.0 delivery, at least one newly discovered
bug.
For any given bug, it is only a matter of opinion whether it constitutes an unfitness for use or
a significant hidden defect.
Where are we going and why are we in a handbasket?
"NO WARRANTY OR GUARANTEE IS IMPLIED. USE THIS SOFTWARE AT YOUR OWN RISK" or some combination of that. Even my home server says that every time I SSH into it.
There is no reason that a legislature cannot pass a law saying that this disclaimer is contrary to public policy and won't be respected in the courts.
Indeed. In Finland, just about all such disclaimers are totally worthless. In particular consumer rights are defined in law and can only be extended by warranties, never reduced by disclaimers. Some rights can't even be signed away.
and of course because of this all software sold in Finland is free of bugs.
In Finland, just about all such disclaimers are totally worthless. In particular consumer rights are defined in law and can only be extended by warranties, never reduced by disclaimers. Some rights can't even be signed away.
and of course because of this all software sold in Finland is free of bugs.
If only. :-)
Actually, in particular regarding software the "implied warranties" are not much stronger than what you'd get in most US states by disclaiming everything you can. So the end result is just that there's no need to add lots of complex legalese in EULAs: just don't promise anything you can't keep and you're fine. (On the other hand, you can't arbitrarily restrict software buyers' or users' rights with EULAs either, sometimes not even with signed contracts: e.g., law explicitly states that a contract that forbids backups is void.)
"You certainly don't need an grant from the licensor to use a piece of software."
Good to know I can use as much copies of Windows as I want without a license from Microsoft. It's a pity the BSA doesn't seem to think the same.
Yes you can. You can't make new ones, except the ones needed to operate that one copy. That's the whole point of copyright. And that's an explicitly granted fair use exception.
"And even if you don't (which you do), he gives you an impicit license by giving it to you."
If that's the case which is not in the vast majorities of cases with regards to open source: most of the times it is not the provider giving it to me but I taking it (i.e. downloading) from the provider. A subtle but important difference.
A subtle, but unimportant difference. The copyright holder gave the licensee the *explicit* grant (and in case of the GPL, demand) to give all subsequent licensee the same rights as he has.