Carol A. Kunze ckunze at ix.netcom.com
Tue Jan 30 13:23:14 UTC 2001

I do not believe implied warranties should apply to open source software.
IAAL, however, IANYL and this is not intended, nor should it be construed
as legal advice. 

I will confine my remarks to one point, although there are others.

Implied warranties on open source software do not make sense because there
is no  license income to support granting a warranty.    

Let me first note that this view does not include express warranties,
described in statutes as "an affirmation of fact or promise, . . .
including by advertising, . . . any description . . . .  "  

The implied warranty of merchantability is that the product "is fit for the
ordinary purpose for which such computer programs are used."  No one really
knows what this means in the context of software.  Everyone (at least
within my knowledge), proprietary and open source alike, disclaims this

There can be no license income because every copy carries with it the right
for the user to make more copies and to distribute those copies in
competition with the original supplier.  One cannot extract a profit on
software under this scenario - at least not for long.  So in practice, it
is free beer.

Red Hat's standard Linux product sells on disks for $29.95 with printed
documentation and installation service.  It competes with Red Hat's own
free download version.  It also competes with the Red Hat Linux version
distributed on disks by Cheapbytes for $4.99. 

Market economics will not tolerate a profit on the software under this
competitive scenario.  In fact, Red Hat is selling the medium, printed
documentation and services for $29.95, but the software is free. 

If Red Hat could extract a profit, someone would immediately set up a
competing business to undercut its price, and then that price would be
undercut by another distributor and so on until the price was reduced back
to zero.  

Keep in mind, Windows operating system sells for what, about $200?  $319
for the professional version last time I checked.  

There are also unanswered questions with respect to open source and
warranties.  Microsoft gets paid for every user of Windows (discounted
price of $1,199 for 10 users). Compare this to a small business which
"buys" a copy of Linux for $29.95 and makes 9 more copies.  Has the
supplier warranted 10 copies or 10 users?

The issue is worse when it comes to the actual authors who may sell some
free software  basically for the price of the disks:
"If free-software authors . . . find themselves getting sued over the
performance of the programs they’ve written, they’ll stop contributing free
software to the world.  It’s to our advantage as users to help the author
protect this right."
-- Bruce Perens, Open Sources:  Voices from the Open Source Revolution, 1999

Given that open source software does not generate license income, implying
a warranty is not reasonable.  Put another way, open source software cannot
even afford to win a warranty lawsuit. 


Carol A. Kunze 
Napa, CA
ckunze at ix.netcom.com
707.371.1807 (fax) 

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