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digitalmars.D - Licence question about Indemnification

reply "Chris" <invalid invalid.invalid> writes:
Greetings to all !

I am evaluating D language for my next project (and immediatly loved
it),  but went to a screetching halt on the following licence term:

"You agree to defend, indemnify and hold Digital Mars and Symantec, its
subsidiaries, affiliates, directors, officers, employees and agents
harmless from all claims or demands made against them (and any related
losses, damages, expenses and costs) arising out of your use of the
Software."

I feel the statement "arising out of your use" is too broad in scope, and
ecompassing even the _legitimate_ use of the compiler.

For example let's say that I wrote an antivirus in D, and come to be a good
product; if Symantec lose some market share of their similar product, since
the product was made "out of my use of the Software", do I have to
"indemnify" them?

The clause apparently cover even the demands from an unrelated third party,
simply because "arise out of my use" of the software; let's say that I
made a security network tool, and discovered some vulnerabilities in
Symantec (or any affiliates) products. Let's say that they had many loss due
to imdenification requested by their customer, or simply by bad review in
press; do I have to refound they under that clause?

The licence term apply even to "subsidiaries" and"affiliates", which can be
companies that are in my businnes (but not the some businnes of Digital Mars
or Symantec) and obviously my competitor. With above clause they have a
weapon against me.

I am pretty sure the licence term intended to protect from
over-responsabilities, but ended to say a very different thing.

Thank you for your time.
Mar 30 2009
next sibling parent reply "Unknown W. Brackets" <unknown simplemachines.org> writes:
That is a very common clause.  The idea, as far as I understand, is that 
if the compiler were to break - and your client were to sue you because 
of this - you can't sue down the chain.

 From the same directory, readme.txt:

"The optimizer and code generator sources are
covered under a separate license, backendlicense.txt.

It does not apply to anything else distributed by Digital Mars,
including D compiler executables."

Theoretically, this could mean you are safe.  However, to be sure, I am 
an individual unlearned in the law, and therefore legally unable to give 
you anything anyone might construe as legal advice.

For questions such as these, your best bet is to ask your lawyer.

-[Unknown]


Chris wrote:

 Greetings to all !
 
 I am evaluating D language for my next project (and immediatly loved
 it),  but went to a screetching halt on the following licence term:
 
 "You agree to defend, indemnify and hold Digital Mars and Symantec, its
 subsidiaries, affiliates, directors, officers, employees and agents
 harmless from all claims or demands made against them (and any related
 losses, damages, expenses and costs) arising out of your use of the
 Software."
 
 I feel the statement "arising out of your use" is too broad in scope, and
 ecompassing even the _legitimate_ use of the compiler.
 
 For example let's say that I wrote an antivirus in D, and come to be a good
 product; if Symantec lose some market share of their similar product, since
 the product was made "out of my use of the Software", do I have to
 "indemnify" them?
 
 The clause apparently cover even the demands from an unrelated third party,
 simply because "arise out of my use" of the software; let's say that I
 made a security network tool, and discovered some vulnerabilities in
 Symantec (or any affiliates) products. Let's say that they had many loss due
 to imdenification requested by their customer, or simply by bad review in
 press; do I have to refound they under that clause?
 
 The licence term apply even to "subsidiaries" and"affiliates", which can be
 companies that are in my businnes (but not the some businnes of Digital Mars
 or Symantec) and obviously my competitor. With above clause they have a
 weapon against me.
 
 I am pretty sure the licence term intended to protect from
 over-responsabilities, but ended to say a very different thing.
 
 Thank you for your time.
Mar 30 2009
parent reply "Chris" <invalid invalid.invalid> writes:
"Unknown W. Brackets"

 That is a very common clause.  The idea, as far as I understand, is that
 if the compiler were to break - and your client were to sue you because of
 this - you can't sue down the chain.


I am familiar with the clause you are talking about (and I basically agree
with it), but the D licence clause seems much different.

Infact it says that if someone (even unrelated to my businnes) caused
them pratically every type of "cost", I have to indemnify them (who
exactly?), simply because that cost "arose out" of my use (not misuse)
of the Software.
And note that the chain you are referring to, don't have to pass through me.

If a normal limitation of responsability was the intent, then the clause is
a thousand times wide.
Mar 30 2009
parent "Unknown W. Brackets" <unknown simplemachines.org> writes:
 From my limited legal understanding, which being so limited can only be 
considered an unlearned opinion, I think that the clause "arising out of 
your use of the Software" limits the entire paragraph.

Obviously, if I were to write a malicious virus in D, no one ought to 
sue Walter.  They should sue me, right?  I mean, that's what I would think.

If someone did sue Walter, he might sue me, for the damages I did to him 
and D, by using it to write a virus.  Unless he just felt like being a 
nice guy.

Of course, all this banter is really just hypothesizing and talking 
about personal, mostly irrelevant, opinions.  Again, you need to contact 
and discuss this issue with a lawyer who has passed through your 
region's licensing requirements to be able to properly (and legally) 
advise you on this matter.

-[Unknown]


Chris wrote:

 "Unknown W. Brackets"

 That is a very common clause.  The idea, as far as I understand, is that
 if the compiler were to break - and your client were to sue you because of
 this - you can't sue down the chain.


 
 I am familiar with the clause you are talking about (and I basically agree
 with it), but the D licence clause seems much different.
 
 Infact it says that if someone (even unrelated to my businnes) caused
 them pratically every type of "cost", I have to indemnify them (who
 exactly?), simply because that cost "arose out" of my use (not misuse)
 of the Software.
 And note that the chain you are referring to, don't have to pass through me.
 
 If a normal limitation of responsability was the intent, then the clause is
 a thousand times wide.
Mar 30 2009
prev sibling next sibling parent reply Sean Kelly <sean invisibleduck.org> writes:
Chris wrote:

 Greetings to all !
 
 I am evaluating D language for my next project (and immediatly loved
 it),  but went to a screetching halt on the following licence term:
 
 "You agree to defend, indemnify and hold Digital Mars and Symantec, its
 subsidiaries, affiliates, directors, officers, employees and agents
 harmless from all claims or demands made against them (and any related
 losses, damages, expenses and costs) arising out of your use of the
 Software."
 
 I feel the statement "arising out of your use" is too broad in scope, and
 ecompassing even the _legitimate_ use of the compiler.
 
 For example let's say that I wrote an antivirus in D, and come to be a good
 product; if Symantec lose some market share of their similar product, since
 the product was made "out of my use of the Software", do I have to
 "indemnify" them?


I believe this clause is simply the one in most licenses that protects 
the creator of the product from responsibility if their product causes 
harm.  From the dictionary definition of "indemnify" I'd choose the 
first entry: "to secure against hurt, loss, or damage."  Basically, if 
someone sues you because your D app does something horrible, you don't 
have the right to turn around and sue Digital Mars or Synamtec in turn. 
  For example, in the BSD license:

http://www.opensource.org/licenses/bsd-license.php

This clause is present:

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS 
IS" . . . IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE 
LIABLE FOR ANY . . . DAMAGES . . . ARISING IN ANY WAY OUT OF THE USE OF 
THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Mar 30 2009
parent reply "Chris" <invalid invalid.invalid> writes:
"Sean Kelly"

 Chris wrote:

 "You agree to defend, indemnify and hold Digital Mars and Symantec, its
 subsidiaries, affiliates, directors, officers, employees and agents
 harmless from all claims or demands made against them (and any related
 losses, damages, expenses and costs) arising out of your use of the
 Software."

 I feel the statement "arising out of your use" is too broad in scope, and
 ecompassing even the _legitimate_ use of the compiler.


 I believe this clause is simply the one in most licenses that protects the
 creator of the product from responsibility if their product causes harm.
 From the dictionary definition of "indemnify" I'd choose the first entry:
 "to secure against hurt, loss, or damage."  Basically, if someone sues you
 because your D app does something horrible, you don't have the right to
 turn around and sue Digital Mars or Synamtec in turn.


This is the normal clause we can find everywhere.
By contrast, the D licence clause says if someone else sued THEM,
then I have to give them some money; the only requisite is that
the cause is "my use" of the software.

I have to resort to dictionary too since I am not very good at English,
and found:
http://dictionary.reference.com/dic?q=indemnify&search=search

"1. To compensate for damage or loss sustained, expense incurred"

So indemnify the cost shall mean that I have to pay cash (and I
don't see otherwise how can I indemnify them against third party).


  For example, in the BSD license:

 http://www.opensource.org/licenses/bsd-license.php

 This clause is present:

 THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS
 IS" . . . IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE
 FOR ANY . . . DAMAGES . . . ARISING IN ANY WAY OUT OF THE USE OF THIS
 SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.


Not the some thing: it says that I can't sue them.
It doesn't say that I have to refund someone.
Mar 30 2009
parent Walter Bright <newshound1 digitalmars.com> writes:
Chris wrote:

 "Sean Kelly"

 Chris wrote:

 "You agree to defend, indemnify and hold Digital Mars and Symantec, its
 subsidiaries, affiliates, directors, officers, employees and agents
 harmless from all claims or demands made against them (and any related
 losses, damages, expenses and costs) arising out of your use of the
 Software."

 I feel the statement "arising out of your use" is too broad in scope, and
 ecompassing even the _legitimate_ use of the compiler.


 I believe this clause is simply the one in most licenses that protects the
 creator of the product from responsibility if their product causes harm.
 From the dictionary definition of "indemnify" I'd choose the first entry:
 "to secure against hurt, loss, or damage."  Basically, if someone sues you
 because your D app does something horrible, you don't have the right to
 turn around and sue Digital Mars or Synamtec in turn.


 
 This is the normal clause we can find everywhere.
 By contrast, the D licence clause says if someone else sued THEM,
 then I have to give them some money; the only requisite is that
 the cause is "my use" of the software.
 
 I have to resort to dictionary too since I am not very good at English,
 and found:
 http://dictionary.reference.com/dic?q=indemnify&search=search
 
 "1. To compensate for damage or loss sustained, expense incurred"
 
 So indemnify the cost shall mean that I have to pay cash (and I
 don't see otherwise how can I indemnify them against third party).


The way I interpret it is it has to be damages that can be directly 
traced to your use of the software. In other words, if you write an app 
using dmd that deletes someone's hard disk, you cannot hold Symantec 
responsible. If someone else writes an app using dmd that deletes a hard 
disk, you are not indemnifying Symantec for that.

I.e. you are responsible for the consequences of your use of dmd, not 
Symantec.
Mar 30 2009
prev sibling next sibling parent reply Christopher Wright <dhasenan gmail.com> writes:
Chris wrote:

 Greetings to all !
 
 I am evaluating D language for my next project (and immediatly loved
 it),  but went to a screetching halt on the following licence term:
 
 "You agree to defend, indemnify and hold Digital Mars and Symantec, its
 subsidiaries, affiliates, directors, officers, employees and agents
 harmless from all claims or demands made against them (and any related
 losses, damages, expenses and costs) arising out of your use of the
 Software."
 
 I feel the statement "arising out of your use" is too broad in scope, and
 ecompassing even the _legitimate_ use of the compiler.
 
 For example let's say that I wrote an antivirus in D, and come to be a good
 product; if Symantec lose some market share of their similar product, since
 the product was made "out of my use of the Software", do I have to
 "indemnify" them?


In this context, "indemnify" means "agree never to hold responsible". 
This means that you and your customers can't sue Symantec or Digital 
Mars if your antivirus software kills their firstborn children due to a 
bug in DMD.

If you use DMD to create an antivirus application that totally destroys 
Symantec and they go bankrupt, you owe them nothing.
Mar 30 2009
parent Georg Wrede <georg.wrede iki.fi> writes:
Christopher Wright wrote:

 Chris wrote:

 Greetings to all !

 I am evaluating D language for my next project (and immediatly loved
 it),  but went to a screetching halt on the following licence term:

 "You agree to defend, indemnify and hold Digital Mars and Symantec, its
 subsidiaries, affiliates, directors, officers, employees and agents
 harmless from all claims or demands made against them (and any related
 losses, damages, expenses and costs) arising out of your use of the
 Software."

 I feel the statement "arising out of your use" is too broad in scope, and
 ecompassing even the _legitimate_ use of the compiler.

 For example let's say that I wrote an antivirus in D, and come to be a 
 good
 product; if Symantec lose some market share of their similar product, 
 since
 the product was made "out of my use of the Software", do I have to
 "indemnify" them?


 
 In this context, "indemnify" means "agree never to hold responsible". 
 This means that you and your customers can't sue Symantec or Digital 
 Mars if your antivirus software kills their firstborn children due to a 
 bug in DMD.




 If you use DMD to create an antivirus application that totally destroys 
 Symantec and they go bankrupt, you owe them nothing.


Errr, /they/ owe you nothing. But they can sue you.

(Not that suing over losing market share to a competitor were grounds 
for suing, but that's not the issue. This indemnification is here so 
nobody can sue /them/, but it doesn't affect their suing others or you.)


More interesting would be if Symantec licensed your D software and it 
caused them to go bankrupt. They probably would sue you, but "not 
related to the use of D, etc.", instead they'd sue for "your choices of 
algorithm" or "your sloppy software practices", or something else.
Mar 30 2009
prev sibling next sibling parent reply Kagamin <spam here.lot> writes:
Chris Wrote:


 You agree to indemnify Symantec from all claims or demands


Note the use of "from" preposition. Indemnify from = defend, indemnify for =
compensate.
Mar 31 2009
parent "Chris" <invalid invalid.invalid> writes:
"Kagamin"

 Chris Wrote:


 You agree to indemnify Symantec from all claims or demands


 Note the use of "from" preposition. Indemnify from = defend, indemnify for 
 = compensate.


Ok this could be a solution.
Thanks to everybody.
Mar 31 2009
prev sibling parent reply Kagamin <spam here.lot> writes:
BTW, how do you understand Microsoft EULA?

"you will indemnify, hold harmless, and defend Microsoft from and against any
claims or lawsuits, including attorneys’ and experts’ fees, that arise or
result from the use or distribution of your Application"
Mar 31 2009
parent reply Georg Wrede <georg.wrede iki.fi> writes:
Kagamin wrote:

 BTW, how do you understand Microsoft EULA?
 
 "you will indemnify, hold harmless, and defend Microsoft from and 
 against any claims or lawsuits, including attorneys’ and experts’ 
 fees, that arise or result from the use or distribution of your 
 Application"


That's clear enough. You write an app, your customer uses it for a
while, and then it formats everybody's hard disk /because/ of an error
in the Microsoft file handling library. They sue you for damages, and of
course you'd have to sue somebody else to save your damn /life/. But,
sorry, you've "promised" not to sue M$. And you've promised to be M$'s
witness, not the customer's.


Does anybody know if there are court cases where stating things in the
EULA have been honored?

I mean, it's not a written agreement, and I don't know if the user of
some software (or, here also, development tool) can be demanded to read,
understand, and explicitly decide to agree -- by merely using such a
product?

Or, while I know some istalling programs make you check a box stating 
you agree, but say you buy a PC with the OS already installed, and then
start programming, say, using this PowerShell thingy, and the crap hits
the fan -- because of some Microsoft blunder (like I haven't been there
quite a few times already, but in Finland we can't sue around just
frivolously). You,ve then never seen this EULA, and I wonder if you can
be expected to, either.

Of course "you should have understood, it's public knowledge", yeah. But 
then cars have this text in the rear view mirror stating things may be 
closer, or whatever. Geez, like /that/ wouldn't be common knowledge. 
(People that stupid shouldn't even get a driver's licence, IMNSHO.)
Mar 31 2009
parent "Steven Schveighoffer" <schveiguy yahoo.com> writes:
On Tue, 31 Mar 2009 12:08:29 -0400, Georg Wrede <georg.wrede iki.fi> wrote:


 Or, while I know some istalling programs make you check a box stating  
 you agree, but say you buy a PC with the OS already installed, and then
 start programming, say, using this PowerShell thingy, and the crap hits
 the fan -- because of some Microsoft blunder (like I haven't been there
 quite a few times already, but in Finland we can't sue around just
 frivolously). You,ve then never seen this EULA, and I wonder if you can
 be expected to, either.


If you buy a new PC with windows installed on it, you must go through an  
initial setup where you are shown the license.  So this is impossible.

-Steve
Mar 31 2009