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It's probably fine; but it's not perfectly unambiguously fine, which means the first defendant may face years of uncertainty and millions of dollars of legal fe

It's probably fine; but it's not perfectly unambiguously fine, which means the first defendant may face years of uncertainty and millions of dollars of legal fees before they win. Maybe the other party would be ordered to pay some of that, and maybe they'd manage to collect. Against the €0 they've been paid, that's still a pretty bad bet. That's the good outcome, where they win. They probably won't lose, but if they do then it's potentially catastrophic. Perhaps you could find a law student who didn't appreciate those second-order consequences, but no one who's ever had involvement with a real nontrivial proceeding would. I think whatever training you've received has given you some false confidence here. A real lawyer's answer to almost any question is stereotypically "it depends", and that's for good reason. Even the smallest points of uncertainty can get expensive fast, both in legal fees and in expected value when a small probability gets multiplied by a very large worst-case loss. The EU has created a new such point here. That's probably more from sloppy drafting than from any intent, but it's unfortunate.

hnfong 2y ago
I get your point, but realistically you're talking about a minuscule chance of being sued as first defendant given the thousands of OSS devs in the region. Is a rational person supposed to be worried about the < 0.1% chance of financial ruin? To the extent they have to take draconian measures to protect themselves while working on OSS? "It depends" is correct but totally useless advice. Sure, a lawyer should probably remind the client that people sue others for unsubstantiated reasons as well so there's always some legal risk in new legislation where there's more uncertainty as to what the words mean... but as I said I'm not a lawyer and I'm certainly not the OP's lawyer or your lawyer. As in, I'd probably cover my ass a bit more if I were, but the fact is that the legislation wasn't intended to impose strict liability on OSS devs and unlikely will have that effect.
- tripletao 2y ago
  If the EU passed legislation to randomly select three people under its jurisdiction and bankrupt them, then I think that (a) my personal risk would be too low to be actionable, as you say; but (b) that's pretty bad legislation. I think they've constructed roughly that effect here. I believe that's worth complaining about, both in principle and to the extent that same demonstrated carelessness might create more serious practical problems in future. That's especially true since as far as I can tell, this would have been an easy fix, just better drafting with no intended policy change. Of course that's different from what a lawyer considering only their client's current personal interests should care about. There I think most developers would take no action (and I don't plan to myself), though the lawyer would probably consider that a business decision and leave it for their client to make in the context of their legal advice. I might take action if I worked on a high-risk (e.g. cryptocurrency per below) project, to use a pseudonym, minimize assets in the EU, etc.
- bigfatkitten 2y ago
  > I get your point, but realistically you're talking about a minuscule chance of being sued as first defendant given the thousands of OSS devs in the region There's that, and and there's also the fact there's no point in suing people with little money. An aggrieved company isn't going to go after a random open source dev, because that cost more than it is worth. They will find an actual commercial vendor to sue.
  - tripletao 2y ago
    That's true, but only if the thing they want is money. For example, a commercial software developer might fund lawsuits against its open-source competitor even with no hope of recovering significant cash, because the goal is simply to destroy that competitor. Probably they'd lose eventually. The effect on the defendant would be big regardless though, and that's the point. A lawsuit doesn't have to win to be a useful economic weapon, just to survive long enough to inflict the intended pain on your opponent.

hnfong 2y ago

I get your point, but realistically you're talking about a minuscule chance of being sued as first defendant given the thousands of OSS devs in the region. Is a rational person supposed to be worried about the < 0.1% chance of financial ruin? To the extent they have to take draconian measures to protect themselves while working on OSS? "It depends" is correct but totally useless advice. Sure, a lawyer should probably remind the client that people sue others for unsubstantiated reasons as well so there's always some legal risk in new legislation where there's more uncertainty as to what the words mean... but as I said I'm not a lawyer and I'm certainly not the OP's lawyer or your lawyer. As in, I'd probably cover my ass a bit more if I were, but the fact is that the legislation wasn't intended to impose strict liability on OSS devs and unlikely will have that effect.

tripletao 2y ago
If the EU passed legislation to randomly select three people under its jurisdiction and bankrupt them, then I think that (a) my personal risk would be too low to be actionable, as you say; but (b) that's pretty bad legislation. I think they've constructed roughly that effect here. I believe that's worth complaining about, both in principle and to the extent that same demonstrated carelessness might create more serious practical problems in future. That's especially true since as far as I can tell, this would have been an easy fix, just better drafting with no intended policy change. Of course that's different from what a lawyer considering only their client's current personal interests should care about. There I think most developers would take no action (and I don't plan to myself), though the lawyer would probably consider that a business decision and leave it for their client to make in the context of their legal advice. I might take action if I worked on a high-risk (e.g. cryptocurrency per below) project, to use a pseudonym, minimize assets in the EU, etc.
bigfatkitten 2y ago
> I get your point, but realistically you're talking about a minuscule chance of being sued as first defendant given the thousands of OSS devs in the region There's that, and and there's also the fact there's no point in suing people with little money. An aggrieved company isn't going to go after a random open source dev, because that cost more than it is worth. They will find an actual commercial vendor to sue.
- tripletao 2y ago
  That's true, but only if the thing they want is money. For example, a commercial software developer might fund lawsuits against its open-source competitor even with no hope of recovering significant cash, because the goal is simply to destroy that competitor. Probably they'd lose eventually. The effect on the defendant would be big regardless though, and that's the point. A lawsuit doesn't have to win to be a useful economic weapon, just to survive long enough to inflict the intended pain on your opponent.