[License-discuss] Are limitation/disclaimer of warranty clauses legally non-binding due to missing browsewrap/clickwrap agreement?

[Patrick Schleizer]

It is an established fact in case history that Terms of Service are only
upheld by courts when they are presented to users in a conspicuous way
through a browsewrap or clickwrap agreement. [1] [2]

Users of Open Source Software are in most cases in my experience not
presented either a browsewrap or clickwrap agreement. Therefore a user
hating a particular Open Source Software project could obtain it, use
it, have damages, and then sue its producers for damages while claiming
no Terms of Service were presented to the user, therefore no limitation
or disclaimer of warranty would be available to the producers.

The argument could stop here, but I'll try to clarify a few things that
might come up.

defaults vs non-defaults:

- copyrights: works are copyrighted by default
- Terms of Service: don't exist by default, only are upheld if presented
to users in conspicuous way.
- warranties: exist by default by law unless effectively disclaimed
through agreement

Without Terms of Service being upheld by court, the only fallback is the
law, which may include liability/warranty.

By the law, in layman's terms, in summary:
- developers are "expected to be smart"
- users are "to be protected", "expected to be dumb"

The copyright protection / licenses of the Open Source Software, in my
view, do apply and are effective with respect to copyright. Developers
can't obtain Open Source Software, then claim "no Terms of Service were
provided to me", "it was implied to be in the public domain", and then
take some let's say GPL'd software package and turn it into proprietary
software. That's the developers are "expected to be smart" part of the
license which I believes is effective. That's the copyright law part.

However, liabilities, warranties, disclaimers are a different beast.
That's related to the Uniform Commercial Code (UCC), which applies to
"transactions". There's a detailed paper that makes the case that Libre
Software downloads meet the definition of a "transaction" under UCC. [4]
That's the users are "to be protected", "expected to be dumb" part.
Providing warranty is "the default". And, "I didn't see the Terms of
Service, therefore these don't apply to me" has worked in courts before.

All of this is a bit specific to laws of USA but may be quite similar in
other jurisdictions.

In other jurisdictions, namely Germany, even if the software distributed
is both libre and gratis, the law regards all transactions as governed
by contracts. Buying a battery in a shop without speaking is considered
an implied purchase contract, no written form or signatures required.
Warranty included. Even gifts are transferred under a so called "gift
contract" / "contract of donation" that comes with an implied warranty.
Disclaimers of warranty for gifts may be partially possible, one
exception is gross negligence which cannot be disclaimed.

Possible solutions:

- Open Source Software website with _effective_ browsewrap agreement [1]
[2], and/or
- Open Source Software installer with clickwrap agreement [1] [2], and/or
- Open Source Software first start screen with clickwrap agreement

Inspired by a paper mentioning GPL in context of clickwarp / browsewrap. [5]

> In Specht v. Netscape Communications Corp., the court refused to
enforce Netscape's browsewrap license for its SmartDownload software
because the customer was neither required to view the license nor
manifest assent to it prior to downloading the software. 203 The court,
while noting the acceptance of clickwrap licenses, required that the
customer would (a) actually see the license agreement and (b) manifest
actual assent.204

Kind regards,
Patrick

Personal disclaimer: I am not a lawyer. This is not legal advice.

[1] https://termsfeed.com/blog/browsewrap-clickwrap/
[2] https://termly.io/resources/articles/browsewrap-vs-clickwrap/

[4]
https://cpb-us-e1.wpmucdn.com/sites.suffolk.edu/dist/5/1153/files/2014/12/McJohn-THE-GPL-MEETS-THE-UCC.pdf

[5]
https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1057&context=ckjip

https://web.archive.org/web/20160912182127/https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1057&context=ckjip