a proposed change to the OSD
bruce_dodson at hotmail.com
Sat Nov 2 18:18:15 UTC 2002
I can offer something without entering a relationship with each recipient.
I have software published on SourceForge; I entered into an agreement with
SourceForge but I have no relationship with the people who downloaded my
stuff from there. The people who downloaded might or might not have a
relationship with SourceForge; that is no concern of mine. Likewise with
Tripod, and other places where I have published stuff.
Mahesh, you're switching back and forth between liability and warranty,
using the words interchangeably, which is confusing. Warranty is a product
that can be offered or not offered. Implied warranties are an implicit part
of another product (which can be expressly excluded in many places).
Liability is not a product to be offered; it's a completely different beast.
If there is no contract, you can't contract away liability. But if there's
no direct relationship between you and the recipient (such as a contract),
it's hard to conceive of a way that you could be held liable in the first
place. At least I, a mere software developer, cannot conceive of one.
As for warranty, I was sure that I can always say I'm offering something "as
is". That's just a statement that I'm not offering any warranty products in
addition to my software product. As for implicit warranties of
merchantability etc., I will always use a license that says those don't
apply, but why should the recipient care about merchantability if they
didn't buy it? (And if they did buy it, they probably have a contract with
whoever sold it to them, but not with me because I wasn't involved in the
"THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE
LAW" - I'm guessing the GPL says that for other reasons, that have to do
with the fact that some jurisdictions don't let you remove the implied
warranties of merchantability and fitness. I doubt this matters much for
the software that FSF gives away, although it might make a difference for
the CDs that they sell. I am only guessing.
----- Original Message -----
From: "Mahesh T Pai" <paivakil at vsnl.net>
To: "David Johnson" <david at usermode.org>
Cc: <license-discuss at opensource.org>
Sent: Saturday, November 02, 2002 5:10 AM
Subject: Re: a proposed change to the OSD
> David Johnson wrote:
> > I still haven't come to grips yet with the concept that a contract is
> > for disclaimers of warranty. It seems to me that there must be another
> > mechanism that achieves the same result.
> You have to make the terms under which you are offering something
> clear. Situations where a single person (eg. a software developer)
> entering into relationships with several persons ( eg, by distributing
> several copies of the same s/w) on same terms (that is, under the same
> license) are not always treated as *pure* (mark the word pure)
> contractual by courts - at least, in the common-law world.
> When you disclaim liability you have to make such disclaimer it clear
> and tell the court that you have informed the recipient of s/w that he
> knew, at least you took sufficient steps to inform the other guy about
> the existence of the disclaimer. If the relationship is contractual,
> this disclaimer will help you, if not, (status based) nothing will.
> That is why, the GNU GPL (and most other licenses) use the phrase
> "THERE IS NO WARRANTY FOR THE PROGRAM, TO THE *EXTENT PERMITTED BY
> APPLICABLE LAW*" in paragraph 11.
> Mahesh T Pai.
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