Germany

[SamBC]

----- Original Message -----
From: "John Cowan" <jcowan at reutershealth.com>
To: "SamBC" <sambc at nights.force9.co.uk>
Cc: <alexander.eichler at wfm.de>; <license-discuss at opensource.org>
Sent: Friday, January 26, 2001 6:28 PM
Subject: Re: Germany


> SamBC wrote:
>
>
> > 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
> > liability.
>
> All this, however, is not merely a problem for the GPL or OSS software
> in general.  All software is essentially sold without warranty
> protection of any sort, insofar as the jurisdiction permits.

Which most don't!

>
> If you expect that Microsoft Word (to choose an example at random) has
> to have any more function than an old leaky boot, you don't have a leg
> to stand on.

If MSWord, through 'poor workmanship', causes corruption/loss of data
which has financial value in any way, you do have a leg to stand on in
the UK, due to the coupling of implied warranty (fitness for purpose)
and difficulty of disclaiming liability in the UK

>
> > via PROMINENT NOTICES that CANNOT BE MISSED (excuse caps, easiest
way to
> > enforce point).
>
> Exactly while almost all software licenses SCREAM their disclaimers.

But these are shrink-wrap EULA's, to bring up a general problem. Money
is already spent, and the shop doesn't have to refund you if you refuse
to agree to the license, because the product is still fit for the
purpose for which they sold it, your tough titty if you refuse to use
it...

>
> > 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.
>
> In addition, recovering the purchase price is rather pointless.

I was making a general point

>
> > 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.
>
> Probably won't work, because the commercial stuff is just the same.

One legal statement that may work is to state the intended purpose of
the product, and state it as something pathetic, so people can't sue
when it is used for another purpose and make a mess.

The end result, at least in the UK, is that disclaiming liability is not
a legal step, but it can help cover you at least partially, as you have
warned the person. Sorry I wasn't so succinct before.

SamBC