[License-discuss] Reconsidering the "unless required by applicable law" clauses on warranties and limitations of liability

[David Woolley]

On 18/02/2023 20:03, Brian Behlendorf wrote:
> 
> That's not my premise. My premise is that if you can not hold me free 
> from liability or warranty, I have the right to not allow you access to 
> the other rights granted in my software license.

This feels something like a field of endeavour restriction, which are 
not allowed.  (GPLV2 does allow whole countries to be excluded (clause 
8), but only on intellectual property grounds, and the dispensation no 
longer exists in GPLV3.)

Limits on disclaimer of warranty are put into statute law precisely to 
stop contracts from opting out, particular where there is an imbalance 
of power (for the latter reason, the tend to be enforced on consumer 
contracts, but not business ones - some businesses used to make you 
warrant you were a business before they would supply you, but I think 
that practice has died out in the UK, possibly because it was considered 
a loophole, or case law went against it).

Google says that, at least the state of Maine, in the USA, has laws 
granting consumers warranties that you cannot contract out.  That may 
affect other parts the USA, and I'd be surprised if it didn't include 
the whole of Europe.  I'd suggest a restriction to users who didn't have 
such rights would basically have to include the whole private use field 
of endeavour.

I think the normal reason for mentioning statutory warranties in 
contracts is to avoid misleading consumers, who may not realise that 
such statutory rights exist.