The point of the liability disclaimer is that if someone, say, uses the software and happens to lose data due to a bug, the authors (original ones or downstream modifiers or whoever) are not held liable. That requires agreement; it has to be spelled out: if you do not agree with this disclaimer of liability, then you are not licensed to use the software. If you use it anyway, it is an unlicensed use. This is exactly how it works in shrink-wrap EULA's in proprietary software; by opening the shrink wrap, or clicking on some button or whatever the heck, you agree to those things. (If that's a contract, then let it be a contract.) I'm confident that I nailed it to the way it should be, and that "constitutes agreement" is excellent wording.
The difference is that I'm covered, liability wise, better than someone just using the original BSD license, which has a possible interpretation that it allows the use of the software without the user agreeing to the disclaimers, since the license doesn't appear to require acceptance of the disclaimer.
From the developer's POV, that's the only part of a BSD-like license that actually matters. You've already given away the code, and allowed it to be used in proprietary code, so you're not going to be harmed by anyone stealing anything from you. At best, your code could be plagiarized: copied in source code form without you being credited, which isn't very significant. The one way you can be harmed, as in financially, is that someone wants to sue you because of some alleged bug in your code having caused some alleged loss.
By the way, here is how we can be certain that in the BSD license, the disclaimer is not one of the conditions which require agreement. It's because the second condition says: ".. must reproduce the above copyright notice, this list of conditions and the following disclaimer ...". I.e. the following disclaimer is clearly distinct from the conditions, and not one of them. Since it is not one of the conditions, it is not a condition! The license might effectively not be conditional on the disclaimer.
In contrast, in the GPL v2, the two disclaimers are one of the numbered conditions (11 and 12). There is nevertheless a slight flaw in the GPL v2 I just noticed. It introduces the conditions like this: "The precise terms and conditions for copying, distribution and modification follow." But unless "copying" is construed as use, conditions clauses 11 and 12 are not related to copying, distribution and modification. These disclaimers apply purely to use. A bug in the program isn't going cause harm while you're copying, modifying or redistributing it.
In the past I've seen misinformation disseminated about the GPL like "you don't have to agree with it to use the software", which is complete nonsense; you agree with the disclaimers when you use the software.
This reminds me of an anecdote about Godel, not sure if it's true or not, but here goes. When he was taking the Constitution exam to get the US citizenship, he proceeded to explain to the judge how he has a formal proof that the US Constitution is inconsistent and allows for a dictatorship to take over completely legally. Einstein was accompanying him and he somehow managed to quickly shut him up and continue to go through the motions of the exam.
It also, for some reason, reminds me of what Peter Thiel once said about physics PhDs: “Because they know fundamental things, they think they know everything.”
> This reminds me of an anecdote about Goedel, not sure if it's true or not, but here goes.
It's true, according to a recounting [1] by Oskar Morgenstern, one of two friends who were present at Gödel's citizenship examination to vouch for his good character (the other was Albert Einstein).
A single clause for emergencies in the Weimar constitution is what allowed Hitler (via Hindenberg) to assume dictatorial power, so Godel's concern wasn't abstract or abstruse, instead it reflected his recent European experience.
Well lwn.net says "The GPL is a license, not a contract", and that distinction makes a difference[1]. The same applies to the BSD license.
But whatever... Good luck. It's not like these things are the result of decades of lawyers scrutinizing every word.
Oh, regarding your other objection, i. e. the two requirements actually not applying to use but only redistribution, that is just a bit of convoluted logic to make the text shorter. Logically, it's:
>by opening the shrink wrap, or clicking on some button or whatever the heck, you agree to those things.
I don't see why anybody should take seriously the claim that doing something so simple that it can be done accidentally and without reading/listening/or communicating anything at all should constitute an agreement to anything whatsoever.
I wish people would stop telling me what I agree to and start telling me what they're willing to do if I violate their expectations, because that's what's actually intended by an EULA.
With regard to this specific situation, I have changed my mind.
However, the validity of click-through agreements or implied agreement when you use something does seem valid. It's applied all over the place, so lawyers must have come up with it and have a rationale.
Would you extend your reasoning to a signature? You can sign something without reading it. Perhaps not accidentally, though.
I do now agree with you that simply using a program doesn't constitute agreement with its liability disclaimers, even if the license appears to require it as a grant condition. Or rather, that is probably irrelevant.
> start telling me what they're willing to do if I violate their expectations
This is not easy in the case of disclaimers. Ok, you're violating my expectations because you ran into some bug that cost you money and are suing me (whereas my expectations were that you would understand that the program is offered "as is"). Poor silly me! What do I do? Lose and pay up, I guess, if that disclaimer doesn't hold up.
So basically, why bother. There isn't anything you can add to a license to increase the strength of any liability or warranty disclaiming text. Adding text like "using the program constitutes agreement with the disclaimer" serves no purpose.
Canadian courts have agreed in some cases, such as conditions that can't be accessed until a package is opened (this was some time ago, before software was commonly downloaded after purchase.) They have ruled such "contracts" unenforceable or illegal - I don't recall which.
The difference is that I'm covered, liability wise, better than someone just using the original BSD license, which has a possible interpretation that it allows the use of the software without the user agreeing to the disclaimers, since the license doesn't appear to require acceptance of the disclaimer.
From the developer's POV, that's the only part of a BSD-like license that actually matters. You've already given away the code, and allowed it to be used in proprietary code, so you're not going to be harmed by anyone stealing anything from you. At best, your code could be plagiarized: copied in source code form without you being credited, which isn't very significant. The one way you can be harmed, as in financially, is that someone wants to sue you because of some alleged bug in your code having caused some alleged loss.
By the way, here is how we can be certain that in the BSD license, the disclaimer is not one of the conditions which require agreement. It's because the second condition says: ".. must reproduce the above copyright notice, this list of conditions and the following disclaimer ...". I.e. the following disclaimer is clearly distinct from the conditions, and not one of them. Since it is not one of the conditions, it is not a condition! The license might effectively not be conditional on the disclaimer.
In contrast, in the GPL v2, the two disclaimers are one of the numbered conditions (11 and 12). There is nevertheless a slight flaw in the GPL v2 I just noticed. It introduces the conditions like this: "The precise terms and conditions for copying, distribution and modification follow." But unless "copying" is construed as use, conditions clauses 11 and 12 are not related to copying, distribution and modification. These disclaimers apply purely to use. A bug in the program isn't going cause harm while you're copying, modifying or redistributing it.
In the past I've seen misinformation disseminated about the GPL like "you don't have to agree with it to use the software", which is complete nonsense; you agree with the disclaimers when you use the software.