Copyleft/guide Changeset - 4067c5f9915f

Changeset - 4067c5f9915f

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Bradley Kuhn (bkuhn) - 9 years ago 2015-03-13 20:07:16
bkuhn@ebb.org

Clarify & expound on issue of warranty disclaimer

The existing paragraph on this issue was inadequate, since it punted
entirely to GPLv2§11 for dealing with critics' claims of
unenforceability. That left a mistaken impression of validity of such
claims.

The commit herein adds reference to CIGS, which likely permits GPL's
sort of warranty disclaimer in most jurisdictions, and also bolsters the
reference to the UCC earlier in the section.

However, given academic debate about the applicability of CIGS to
software licenses, this commit includes a footnote referencing the two
sides of that debate.

Tony Sebro and I co-drafted these changes together.

Signed-Off-By: Tony Sebro <tony@sfconservancy.org>
Signed-Off-By: Bradley M. Kuhn <bkuhn@ebb.org>

1 file changed with 36 insertions and 8 deletions:

gpl-lgpl.tex

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gpl-lgpl.tex

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@@ ... / @@ -2398,7 +2398,7 @@ copyright licenses. @@
 Most warranty disclaimer language shouts at you.  The
 \href{http://www.law.cornell.edu/ucc/2/2-316}{Uniform Commercial
   Code~\S2-316}, which most of the USA's states and commonwealths have adopted as their local
-law, requires that disclaimers of warranty be ``conspicuous''.
+law, allows disclaimers of warranty, provided that the disclaimer is ``conspicuous''.
 There is apparently general acceptance that \textsc{all caps} is the
 preferred way to make something conspicuous, and that has over decades worked
 its way into the voodoo tradition of warranty disclaimer writing.
@@ ... @@
   answered Kuhn's requests for case law that argues THIS IS INHERENTLY MORE
   CONSPICUOUS \textsc{Than this is}.}
 Some have argued the GPL is unenforceable in some jurisdictions because
 its disclaimer of warranties is impermissibly broad.  However, GPLv2~\S11
 contains a jurisdictional savings provision, which states that it is to be
 interpreted only as broadly as allowed by applicable law.  Such a
 provision ensures that both it, and the entire GPL, is enforceable in any
 jurisdiction, regardless of any particular law regarding the
 permissibility of certain warranty disclaimers.
 Critics have occasionally questioned GPL's enforceability in some jurisdictions because its
 disclaimer of warranties is impermissibly broad.  However,
 critics
 have generally failed to articulate specific precedents in their
 jurisdictions that would directly indicate a problem with GPL's warranty
 disclaimer.  Meanwhile,
 \href{http://www.cisg.law.pace.edu/cisg/text/treaty.html#35}{Article 35 of
   the United Nations Convention on Contracts for the International Sale of
   Goods} (often abbreviated ``CIGS'', which
 \href{https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=228&chapter=10&lang=en}{many
   countries have adopted}) permits the disclaimer of warranties, so
 jurisdictions adopting this treaty allow some form of warranty
 disclaimer\footnote{Scholars continue to debate to what extent CISG applies to software
   licenses.  For example, Diedrich concluded that ``CISG is prima facie
   applicable to international transactions involving the transfer of computer
   software for a price'', but Sono disagrees with this ``prevailing view'',
   presenting an ``analysis [that] restricts the applicability of the CISG to
   software transactions by excluding `license contracts'''.  (See
   \href{http://www.cisg.law.pace.edu/cisg/biblio/diedrich1.html}{Frank
     Diedrich, \textit{The CISG and Computer Software Revisited}}, 6 Vindobona
   Journal of International Commercial Law and Arbitration, Supplement 55--75
   (2002), and
 \href{http://www.cisg.law.pace.edu/cisg/biblio/sono6.html}{Hiroo Sono,
   \textit{The Applicability and Non-Applicability of the CISG to Software
     Transactions}}, Camilla B. Andersen \& Ulrich G. Schroeter eds., Sharing
 International Commercial Law across National Boundaries: Festschrift for
 Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds
 \& Hill Publishing (2008) 512--526.)}.
 Nevertheless, to account for possible jurisdictional variances regarding this
 or any other issue, GPLv2~\S11 contains
 a jurisdictional savings provision, which
 states that it is to be interpreted only as broadly as allowed by applicable
 law.  Such a provision ensures that both it, and the entire GPL, is
 enforceable in any jurisdiction, regardless of any particular law regarding
 the permissibility of certain warranty disclaimers.
 Finally, one important point to remember when reading GPLv2~\S11 is that GPLv2~\S1
 permits the sale of warranty as an additional service, which GPLv2~\S11 affirms.

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