Legal soundness comes to open source distribution

Rod Dixon rod at
Sat Aug 3 14:47:22 UTC 2002

Your questions actually raise many more issues than is apparent.  The first
critical hurdle we need to conquer is the confusion over whether open source
licenses,  which are presumed to be in compliance with the OSD, are properly
denominated "non-contractual" licenses. I do not agree with that claim, but
I do think that it is a claim that requires resolution. Although there may
be strategic reasons for insisting that the GPL (or any other open source
license) is merely a copyright license, there are consequences attached to
the position. One way to consider this matter is to faithfully review the
OSD to determine whether some of its articles exceed the boundaries of
copyright law. If so, it may be unhelpful to ignore that fact in assessing
whether an open source license is "non-contractual."

Regarding the question about giving up warranty rights, I am not familiar
with any case explicitly on that point, but maybe someone else has more
information on that matter. On the other hand, "as is" licensing is
authorized under UCITA. In addition, the federal warranty law
(Magnuson-Moss) only governs a WRITTEN warranty for consumer, mass-market
goods, which, arguably, may include software distribution when the seller
provides a written warranty.  Generally, if a written warranty is provided,
the seller cannot eliminate any implied warranty under the federal law; that
condition might be what Brian is referring to by his reference to "warranty
rights."  I believe the bottom line for open source licensing is that the
federal law does not apply to "as is" licensing. You might conclude that "as
is" licensing is not exactly consumer-friendly, but one might also view it
as part of the trade-off for the "freedom" granted by the licensor.

Rod Dixon, J.D., LL.M.
rod at
My papers on the Social Science Research Network (SSRN) are available
through the following url:

----- Original Message -----
From: "Brian Behlendorf" <brian at>
To: "Russell Nelson" <nelson at>
Cc: <license-discuss at>
Sent: Saturday, August 03, 2002 4:20 AM
Subject: Re: Legal soundness comes to open source distribution

> On Fri, 2 Aug 2002, Russell Nelson wrote:
> > From what various legal scholars
> > tell me, a non-contractual license (such as the GPL) cannot cause you
> > to give up your warranty rights.
> Is there a reference of some sort for this?  It's about the only solid
> reason I see to need to go beyond copyright law.  Is there any court
> precedent that suggests this?  A case where someone was given something
> for free, with warranty disclaimed in a copyright license, and the court
> decided that warranty disclaimer was invalid?  This is a pretty big delta
> to current understanding, so if a change as large as expanding the OSD to
> cover contracts is based upon this, we need more than hearsay.
> Are there any other reasons to consider allowing the OSD to cover
> contracts?  My sense is that keeping it limited to copyright licenses has
> been key to its success to this point.
> > Agreed.  That's why I think we need to amend the OSD so that it
> > clearly states that a license must not restrict use, modification, or
> > redistribution of the software.
> The OSD, by applying to copyright licenses, already allows restrictions on
> redistribution.  It'd be kinda toothless if it didn't...
> Brian
> --
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