[License-discuss] Consumer protection, defective product

[Pamela Chestek]

On 11/2/2021 2:12 PM, Dirk RIEHLE wrote:
> Hello everyone,
>
> you may have seen this
>
> https://www.natlawreview.com/article/gpl-open-source-litigation-could-open-door-to-other-suits 
>
>
> or similar in which the SFC sues Vizio over GPLv2 violation from the 
> position of consumer protection, not from the position of an original 
> rights holder. According to the article, this is a novel approach, and 
> if it works out, would (indeed) greatly increase who has standing to sue.
>
> When I talk to German lawyers, they tell me anyone who receives a 
> product that violates open source license terms can claim they 
> received a defective product and therefore have standing to sue. Is 
> that not true in the US or did I not understand the laywers I talked 
> to about this right? Or is there disagreement on this?
What you're suggesting is somewhat different from the Conservancy case. 
The Conservancy case is a contract theory, that is, there is a breach of 
contract, namely the failure to provide source code. Conservancy, as a 
"third-party beneficiary" of the contract, has the right to enforce 
those parts of the contract that are designed to benefit the third 
party. A more familiar type of third party contract is an insurance 
contract. In an insurance contract the third party, the named 
beneficiary, is entitled to the insurance payout and can enforce the 
contract to the extent they aren't paid as they should have been.

There probably are also consumer protection laws in the US that could be 
used with the same defective product theory you mention for Germany. 
These are state laws and I'm not familiar with them enough to know if 
they would apply in this situation. However, I suspect that the remedy 
is going to be very limited, perhaps only getting refund of the amount 
paid for the defective product and maybe some small penalty.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
+1 919-800-8033



Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
+1 919-800-8033