[License-discuss] GPL developer protections: Is limitation/disclaimer of warranty legally non-binding?

Patrick Schleizer adrelanos at riseup.net
Mon Mar 25 07:01:00 UTC 2019

I am worried, that the disclaimer and limitation of warranty clauses 15
and 16 by GPLv3 are legally non-binding, ineffective and would be
disregarded by courts.

This is because I've read on gnu.org the position that the GPL is not a
contract [1] and due to the following quote of GPLv3:

> 9. Acceptance Not Required for Having Copies.
> You are not required to accept this License in order to receive or run a copy of the Program.

So the user can stop reading after that clause?

The user could argue to have never agreed to the license (nor by
extension its liability waivers in section 7). Without an agreement
however that comes with a limitation/disclaimer of warranty, how would
there be legally binding warranty limitation/disclaimer?

In the absence of an agreement it follows that the defaults apply. And
the default by law comes with implied warranty.

The user could argue to have assumed it's was implied it's like freeware
(common closed source, nonfree software that is free in price), without
terms of service, therefore only provisions by law apply, and therefore
limitation/disclaimer of warranty legally are non-binding?

GPLv3 vs proprietary software EULAs:
- GPLv3: a license; acceptance not required for running the program.
- EULAs of proprietary software: an agreement where acceptance is
required, using most times clickwrap, so any disclaimers are likely
legally binding.

Other Libre Software licenses such as MIT do not contain such a "You are
not required to accept" clause. So I wonder why GPL invented it?

Kind regards,

[1] https://www.gnu.org/philosophy/enforcing-gpl.en.html

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