sambc at nights.force9.co.uk
Fri Jan 26 16:56:37 UTC 2001
----- Original Message -----
From: "Alexander Eichler" <alexander.eichler at wfm.de>
> Hi all,
> Under German law there are a couple of problems with Open Source
> e.g. it is impossible under German law to have no liability for Open
> Software. On the other hand, GPL says that there is no liability.
> I learned that this is a problem in some states in US too.
It is a problem in many nations, UK being the easiest example, where
there are several 'implied warranties' that cannot be denied, succintly:
merchantability, fitness for a particular purpose, and damages
IANAL, but I looked up all this as it helps to know one's consumer
rights, and I'm British. All of these can be denied and limited to a
certain extent. The first two can be directly denied IN CERTAIN
CIRCUMSTANCES (non-standard retail, such as second-hand, seconds, etc)
via PROMINENT NOTICES that CANNOT BE MISSED (excuse caps, easiest way to
enforce point). The typical phrase (legally defined in fact) is "Sold As
Seen", meaning it's up to you to verify that the product is suitable
before purchase. The only getout for the consumer after this is in the
event of misrepresentation by the vendor.
Damages liability is an interesting one. To get any damages liability
(ie anything more than a refund), it must be well proved that the
damages were caused by the product, unless the vendor/producer settles
out-of-court. Disclaimers strengthen the vendors case, as the people
were warned. In effect, it ends up case-by-case (from what I can
gather), and based on 'reasonable expectations of fitness', relating to
the second implied warranty.
So how does this relate to GPL software? In the UK, very little law
covers software specifically, or computers at all in such a way, except
Misuse of Computers Act (IIR the name C), and the new RIP bill. It is
taken that software is the same as any other product, covered by these
warranties. However, one of the assumptions the GPL works under (and is
not a very safe one) is that people will read the disclaimer, and be
sensible, or believe it to be true. A defending lawyer would make a good
case that the failure of the software was at best a semi-deliberate
ploy, as they new that it was not full-scale commercial stuff.
All a bit horrible, really...
 It is worth noting that in the UK all disclaimers must bear the
words "This Does Not Affect Your Statutory Rights" or words to that
effect, Statutory Rights being the three implied warranties. It is
amazing how many shops have big signs up, to the affect "we will not
accept any returns for any reason, Does Not Affect Your Statutory
Rights" which is really a legally pointless notice, as the second part
cancels the first... silly legal systems...
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