a proposed change to the OSD

Bruce Dodson bruce_dodson at hotmail.com
Sun Nov 3 02:28:12 UTC 2002

Thanks John and Larry.  Now I am starting to see.  That's very frightening
to think about, but I still find it hard to believe.

With the manufacturer / retailer situation, the manufacturer got paid for
the goods, and there was a chain of contracts even though there was no
privity between manufacturer and final recipient.  Does all of this apply
equally to my situation, where I am making the software available purely as
a gift?  (I realize others among us are selling their open source products,
and I have no problem with that, but that's not what I'm doing.)


Forget about privity for a second.  That's a red herring.  My cat just
strolled in, so now I have other things on my mind:  Someone gave this cat
to me; she was "free to a good home".  They said she was healthy, and it
turned out they were right.  If I found that she had some health problem
when I got her, could I have expected the original owners to pay the
veterinary expenses based on some theory of implied warranty?  If I had
decided to return her, could I have expected to be compensated some amount
so I could buy a replacement cat from Pets R Us?

"Don't be stupid, Bruce, of course not," says my conscience.

Does the law disagree?  Also, does it give a different answer for software
than for cats?

----- Original Message -----
From: "Lawrence E. Rosen" <lrosen at rosenlaw.com>
To: "'John Cowan'" <jcowan at reutershealth.com>; "'Bruce Dodson'"
<bruce_dodson at hotmail.com>
Cc: <paivakil at vsnl.net>; "'David Johnson'" <david at usermode.org>;
<license-discuss at opensource.org>
Sent: Saturday, November 02, 2002 8:15 PM
Subject: RE: a proposed change to the OSD

> > That used to be the law.  But people got tired of buying
> > useless and/or dangerously defective products from stores and
> > getting this answer:
> >
> > Store: I had no way to know it was useless/defective: try the
> > manufacturer.
> > Manufacturer: You and we have no privity of contract: try the store.
> >
> > So after enough people got angry enough, the law was changed.
> > Now manufacturers are liable for the useless/defective
> > products they produce *to the ultimate consumer*, under a
> > fiction of "implied warranty": the manufacturer is deemed to
> > have issued such a warranty whether he has or not.  The
> > warranty disclaimer is an attempt to dispose of this
> > obligation, and 1) it may not work at all in some
> > jurisdictions, and 2) it surely will not work unless the
> > manufacturer SHOUTS it at the consumer in an unmistakable place.
> Yes, what John says is true.  And so we find ourselves in a situation
> where manufactured products intended for consumers are covered by
> mandatory warranties under federal law.  (Even some products that
> contain Linux software in them!)  And there are effective product
> liability and consumer protection statutes in nearly all states that
> make manufacturers and distributors liable for the crap they foist on
> the unsuspecting public.
> Someday UCITA may do these things for software.  Do you want that?  Do
> you want the open source community to try to influence the shaping of
> laws like UCITA?
> For those who fantasize a different kind of world, let's make it so.  In
> the meantime, we're stuck with contract law the way it is.  Or at least
> the way it is in the US.  How is it different in other countries?
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