Germany

[SamBC]

----- Original Message -----
From: "Angelo Schneider" <angelo.schneider at oomentor.de>


> Hm,
>
> Microsoft is the cause of the Mellissa Virus and similar Viruses (I
LOVE
> YOU).
> In germany currently a several Billion Dollar/EURO case is prepared
> against Microsoft. Because the lack of security of the Office/Outlook
> software and the so caused loss in time/money for the affected
> institutions of those viruses.

Yep, that's good under my understanding of UK law as well

>
> AND sure we have more than one leg to stand on. The same is true in
the
> united states. Of course you have implied warranties. Or do you think
> you can say: "Here is software, I have written it. Pay me some dollars
> and you may use it. But I OWN it, still. Nope, I'm not liable if it
> hurts your computer :-)"

You can say it, but it may be unenforceable in many jurisdictions, in
the UK it is *very* foggy, but I'd bet on MS losing. The best argument
the plaintiff could give is misrepresentation of goods, which would
require reserch to justify fully or to counter

>
> Sure you are liable. However the GNU license says: you may use it on
> your own risk. And as you do not pay, its like: you may swim here on
> your own risk, its my coast and my land and the water is at my cost
but
> if you swim there, its on your own risk.

The difficulty is, in the UK no distinction is made between goods sold,
and those provided free of charge. And the vendor is not liable, the
orginator is...

>
> This are two different issues.

Depends on jurisdiction, hence the discussion...

>
> Angelo
>
> SamBC wrote:
> >
> > > ----------
> > > Von:  SamBC[SMTP:SAMBC at NIGHTS.FORCE9.CO.UK]
> > > Gesendet:     Freitag, 26. Januar 2001 19:49:28
> > > An:   John Cowan
> > > Cc:   alexander.eichler at wfm.de; license-discuss at opensource.org
> > > Betreff:      Re: Germany
> > > Diese Nachricht wurde automatisch von einer Regel weitergeleitet.
> > >
> > ----- 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
>
> --
>
> Please support a software patent free EU, visit
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>
> ----------------------------------------------------------------------
> Angelo Schneider         OOAD/UML         Angelo.Schneider at oomentor.de
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