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

[Patrick Schleizer]

Thorsten Glaser:
> Patrick Schleizer dixit:
> 
>> It is an established fact in case history that Terms of Service are only
> 
> The warranty disclaimer is not terms of “service”, it’s a condition
> on the licence on the work, issued to the general public on the
> condition that they accept it.
> 
> Since copyright is by default, there has to be a licence in order
> for someone to do anything meaningful with it. Therefore, one has
> to look up the licence, and to accept it means to be bound to both.

That might work for many licenses.

Which brings me to a related point, why this might not work for GPLv3.
I've dedicated a separate e-mail thread for it:

[License-discuss] GPL developer protections: Is limitation/disclaimer of
warranty legally non-binding? [1]

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

[1]
http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/2019-March/020387.html