Comment by skishore | Hacker News Reader

Comment by skishore | Hacker News Reader

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> If Ben and Jerrys left a bunch of ice cream on the sidewalk and a bunch of people ate it and got sick then there would be zero liability on Ben and Jerrys.

Citation? That doesn't seem right, based on my anecdotal knowledge that restaurants take care to throw leftovers into a garbage bin rather than leave them out somewhere where someone could eat them and expose the business to liability.

I looked up this claim myself. In 1996, President Clinton signed the Good Samaritan Food Donation Act into law to limit liability for those who donate food. [1] The majority of restaurants still discard leftover food due to concerns over liability, though. [2] Clearly, liability was a real issue at some point in the past. I don't know enough about the current law to know how easy it is to take advantage of the new protections; I can understand why people are still concerned.

In summary, liability issues vary by country and are not clear-cut. As an analogy for this open-source situation, they don't clarify matters.

[1] https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?...

[2] https://www.huffingtonpost.com/entry/restaurants-that-dont-d...

> based on my anecdotal knowledge that restaurants take care to throw leftovers into a garbage bin rather than leave them out somewhere where someone could eat them and expose the business to liability.

This is an outright lie. It has NEVER happened that a business has been sued for donating food. Not once. It's just a convenient excuse for saying '%$@# the poor.'

Why did you take his food analogy literally? This post contributed nothing to the conversation in any way.

In your analogy you're citing a business. Then if you open source something you wrote, are you claiming you are a business? No matter how un/business-like the open source claim may be: has any money changed ownership between the parties in the course of the person writing and maintaining software vs the person using that software?

If no business transaction has been formalized then why should either party be liable? Indeed, if a person is not permitted to simply say "this is the software I am using" without also becoming liable for problems caused when other people use or look at that software? I don't think it is right to allow a person to be liable just for the speech of their software.

Fortunately, a lot of open source software is known to be open source because of a license file. Many open source licenses declare no liability or warranty of any kind. In that case, would not any liability claimed would be forfeit? Otherwise they would have been using the software in breach of its declared intended purpose at the point of time being talked about.

IANAL but here are a few things to consider.

Every person has a duty of care to minimize the possibility of harm to others. In some professions the standard is higher and may be codified into statute and/or bylaws of their professional association e.g. medical and legal professions. What this means is that, for example, in certain jurisdictions a doctor is bound by his Hippocratic oath and has to render medical assistance to a person who is in urgent need of it, as quickly as practicable. Ignoring this exposes him to liability. So in the particular case of software, a malware author could in theory be found liable by posting his proof of concept in the public domain.

Secondly, in certain jurisdictions, there is an implied warranty of merchantability and also of fitness for a particular purpose. In the US this is under the Uniform Commercial Code.

Most (all?) open source licenses have a clause disclaiming any implied warranty or fitness for a purpose.

The example you cite of a doctor being required to provide emergency medical care I don’t think is quite accurate. In fact, doctors are often not covered by “Good Samaritan” laws and can be held liable if they do stop to help someone and something goes wrong. A layperson would not have that type of legal exposure. Medical treatment issues are complex and I can’t see how they are related to open source software.

That’s the point I was making: it’s not so cut-and-dry as the parent assumed. Depending on the jurisdiction, some actions (or inaction, as the case may be) have consequences. And not all disclaimers are lawful, especially with regards to disclaimers of warranty.

It’s not accurate at all.

In the U.S., a doctor has no affirmative duty to provide medical assistance to injured persons if they have not established a special relationship with the individual.

That’s why in my post I qualified that with “depending on your jurisdiction”.

https://en.m.wikipedia.org/wiki/Duty_to_rescue

Read the last part about the elderly man who died in a bank and no one offered assistance.

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