Re: Express and implied warranties in software licenses
Thank you very much for clearing up my FUD. Well, I have never hidden the fact that I'm no legal scholar, and this is proof once again that a little knowledge can be a dangerous thing. I can only speak for myself, but between this and the discussions we had privately, I'm finally comfortable with the warranty. I would no longer let it stop me from using AFL in situations where I might currently use MIT or Apache-style licenses. bruce - Original Message - From: Lawrence E. Rosen [EMAIL PROTECTED] To: 'Bruce Dodson' [EMAIL PROTECTED] Cc: [EMAIL PROTECTED] Sent: Thursday, November 07, 2002 2:59 AM Subject: Express and implied warranties in software licenses Bruce Dodson wrote: snip The other two concerns -- about whether I'm on the hook for other warranties besides the one that is offered explicitly (Magnusson Moss). You are repeating the notion, occasionally mentioned on license-discuss, that if an open source license offers any warranties at all then the implied warranties of merchantability and fitness for a particular purpose cannot be disclaimed. (See 15 U.S.C. §2308 [no supplier may disclaim or modify any implied warranty on a consumer product if such supplier makes any written warranty].) The Magnusson-Moss act deals with consumer products, meaning any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed). 15 U.S.C. §2301. That does not include software because it is not tangible personal property. Software is intellectual property. If you combine software with a consumer product (e.g., a PDA or telephone), or distribute it on a tangible CD-ROM, arguably the entire consumer product would be subject to Magnusson-Moss rules. But the term written warranty in the act is defined as follows: (A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or (B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product. 15 U.S.C. §2301. I don't read the narrow express warranty in the OSL or AFL as meeting the criteria under either A or B. The notion that one runs afoul of Magnusson-Moss if a software license gives any written warranty whatsoever is not justified in law. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Express and implied warranties in software licenses
Bruce Dodson wrote: snip The other two concerns -- about whether I'm on the hook for other warranties besides the one that is offered explicitly (Magnusson Moss). You are repeating the notion, occasionally mentioned on license-discuss, that if an open source license offers any warranties at all then the implied warranties of merchantability and fitness for a particular purpose cannot be disclaimed. (See 15 U.S.C. §2308 [no supplier may disclaim or modify any implied warranty on a consumer product if such supplier makes any written warranty].) The Magnusson-Moss act deals with consumer products, meaning any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed). 15 U.S.C. §2301. That does not include software because it is not tangible personal property. Software is intellectual property. If you combine software with a consumer product (e.g., a PDA or telephone), or distribute it on a tangible CD-ROM, arguably the entire consumer product would be subject to Magnusson-Moss rules. But the term written warranty in the act is defined as follows: (A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or (B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product. 15 U.S.C. §2301. I don't read the narrow express warranty in the OSL or AFL as meeting the criteria under either A or B. The notion that one runs afoul of Magnusson-Moss if a software license gives any written warranty whatsoever is not justified in law. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Reps, Warranties and Indemnities for OS Kernel SoftwareProduct
Has anyone out there seen or have familiarity with representation and warranties made in connection with the license of software that has at its core code created under the GPL but also has a component of proprietary software put on top of it that is the value added part? As many of you may know, in the commercial context software licensors provide a number of promises regarding copyright, patent and sometime trade secret infringement indemnities and warranties for the software that is being licensed. For obvious reasons this makes far less sense in the OS context because the licensor is not as able to ensure that the code was not "borrowed" from elsewhere without permission because the licensor did not create the kernel of OS that comprises the product themselves and hence the risk is higher for them in making any such types of guarantees. Any insights, thoughts or sample language would be much appreciated.
Re: warranties
However, I may be confused by the term "merchantibility". I take that term to mean that a commercial product is fit to be sold for the purpose under which it is advertised. I can see no possible reason for a commercial concern to sell products it deems unfit for use, so I can't understand why software companies routinely disclaim this. While I can't speak for all vendors of all software, I can tell you what our lawyer told us when we were drafting our license (as best I can recall it). If the company doesn't explicitly disclaim all (implicit) warantees including merchantability, one leaves oneself open to a particular class of otherwise frivolous lawsuits. If one disclaims the implicit warantees, one must provide some explicit warantee for the contract to be valid. (Thus, the common warantee that "the media will be readable for a period of ninety days".) Certain problems are better to cover in a warantee (and to provide specific (controlled) remedies for, because disclaiming them actually opens a larger hole for lawsuits. (Patent issues are one of these areas.) All of these are simply "legal" concerns and do not have any bearing on whether the company will accept returns or not. The disclaimers are simply to help protect against certain legal tactics. Anyone can sue, but with the right defenses, one minimizes the chances that those suits will result in an adverse effect. The company I develop software for does accept customer returns (no questions asked). It's just a matter of good business sense. An unhappy customer is a constant problem. A less unhappy non-customer is someone who may later become a happy customer. However, our license includes the above protections--so if one just reads the license it would seem that we have no faith that our software will do anything. That is obviously not the case. Still we need to protect ourselves from unscrupulous people who might be willing to try suing us if it looked liked we were vulnerable. It's a basic problem with the legal system. Any well meaning agreement can be distorted and used to extract unintended concessions or as they say, "what you say can and will be used against you in a court of law." The legal system is not about what is right and wrong, but about what precedents can be brought to bear to win the argument even if the argument is falacious. Hope this helps, -Chris * Chris ClarkInternet : [EMAIL PROTECTED] Compiler Resources, Inc. Web Site : http://world.std.com/~compres 3 Proctor Street voice : (508) 435-5016 Hopkinton, MA 01748 USA fax: (508) 435-4847 (24 hours) --
Re: warranties
On Wednesday 31 January 2001 12:58 pm, Carol A. Kunze wrote: I think you'll find general agreement with this viewpoint here, once all parties understand you're talking about _implied_, not _explicit_ warrantees. I believe there's confusion on this point in David Johnson's response. He didn't sound confused to me. David? I didn't think I was confused, but now I'm not sure :-) However, I may be confused by the term "merchantibility". I take that term to mean that a commercial product is fit to be sold for the purpose under which it is advertised. I can see no possible reason for a commercial concern to sell products it deems unfit for use, so I can't understand why software companies routinely disclaim this. This is not the first time I have heard the viewpoint that imposing warranties on open source/free software is a reasonable thing to do. I am completely and one-hundred-percent AGAINST imposing warranties on anybody. At the same time, if a product has no warranty, I want to know about it at the time of purchase, not after I have paid my money and started using it. My basic point was simple, I thought. If I buy a toaster and it doesn't work, I want my money back. If I buy software and it doesn't work, I want my money back. The common assumption is that non-sale items can be returned for a refund. If a company does not wish to honor refunds, they or their reseller need to tell the consumer about it at time of purchase. I used to work in the building trades and I had to do a some returns. In the building trades, returns *always* hurt. But I did them anyway because it was the honest thing to do. I was the one that told the customer the product I was selling was suitable for the task at hand. So it was my responsibility to make it right when it turned out that I was wrong. Liability is a bit trickier. Okay, a *lot* trickier. I will agree with the rest of the community that disclaiming liability for Open Source is a Good Thing(tm). I certainly wouldn't want to submit a big fix if it means I have to go to court over it in the future. But commercial distribution of Open Source software is another matter. The commercial distributors are the ones claiming the software is suitable merchandise. If they wish to disclaim all merchantibility, they need to convey that information to me before I purchase the software. I have next to me a commercial Open Source operating system. Nowhere on its packaging is a disclaimer of any kind. None. But they do make a few claims. One of them is "a full, professional quality, UNIX-compatible operating system". I'm not trying to argue that this software, or any others, *must* be warrantied. But the disclaimer should be on the packaging instead of inside it. And the software industry as a whole should start acting like a mature industry and offer warranties as a matter of course. -- David Johnson ___ http://www.usermode.org
Re: warranties
At 07:45 PM 1/30/01 -0800, David Johnson wrote: On Tuesday 30 January 2001 05:23 am, Carol A. Kunze wrote: Implied warranties on open source software do not make sense because there is no license income to support granting a warranty. Why do warranties have to depend on license income? Why can't they depend on support, media, or even *sales* income? All good points. Let me reiterate that this is not intended as legal advice. Requiring suppliers to subsidize software warranties through income from other sources (media, services, etc.) puts them at a competitive disadvantage regarding the profit from those other sources compared to those who command a proprietary profit from the software, the medium and the services. This is doubly disadvantageous for the open source supplier as not only do they grant everyone the right to compete in the distribution of the product, by distributing the source code they also put everyone in the position of being able to compete in servicing the software. The distributor/servicer is disadvantaged compared to one who merely services the product. The implied warranty of merchantability is that the product "is fit for the ordinary purpose for which such computer programs are used." No one really knows what this means in the context of software. Everyone (at least within my knowledge), proprietary and open source alike, disclaims this warranty. This has been the bit that has always bugged me. By not warranting merchantibility, Redhat (as an example) is telling me that their software is UNFIT for the ordinary purpose for which unix-like operating systems are used. I disagree. I know of no software product that does not disclaim this warranty. Does anyone? And yet they all believe in their products. This is really a question of legal and financial risk and has nothing to do with what suppliers think of their software. Market economics will not tolerate a profit on the software under this competitive scenario. In fact, Red Hat is selling the medium, printed documentation and services for $29.95, but the software is free. The media, printed matter, services *and* software all combine into a single product. They are indeed selling the software. If you think about it, you'll have to agree that they couldn't sell a shrinkwrap box with blank CD, manual and support package for the same price as one that actually includes the software. The question is, could a supplier provide a free download version of Linux, and then "sell" printed documentation and installation service together for $29.95. Based on what I just paid for a book on how to use one of my software programs that looks like a good deal to me. However, whatever the rule is, it also has to make economic sense for when the software is being provided alone. Compare this to a small business which "buys" a copy of Linux for $29.95 and makes 9 more copies. Has the supplier warranted 10 copies or 10 users? The supplier only warranties what was sold. If one box was sold then only one box gets warrantied. It doesn't work like that. A warranty on software warrants the operation of the software, not some physical item. If it only applied to a physical copy then the copy installed in the computer would not be warranted because it is not the copy that is on the disk. With proprietary software if the license grants the right to make a copy for a laptop the warranty would apply to that copy also. So what happens when an unlimited number of copies can be made? I don't know. Given that open source software does not generate license income, implying a warranty is not reasonable. Put another way, open source software cannot even afford to win a warranty lawsuit. Remember, we aren't talking about liability here. If Redhat is so stupid as to not honor returns (which is what the standard limited warranty is in every other industry), they deserve any class action lawsuit brought against them. The warranty is not attached to the IP, it's attached to the product. It's Redhat that sold Redhat, not Linus Torvalds or Bruce Perens. They have nothing to worry about. Yes, we are talking about liability. You've conflated the issue of whether there is an implied warranty with what the remedy is for breach of that warranty. I should note that physical disks are generally warranted, and the remedy usually provided in licenses is to get a refund or a replacement. I do not discuss this warranty, but a warranty on the software. Setting aside what the parties may agree to differently in a license, the law would imply a warranty and provide that in the event of breach the user is entitled to direct, indirect, and consequential damages. Again, setting aside whether the licensor can disclaim the warranty and limit damages with the licensee's agreement, the question is whether the above is an appropriate default rule for software which is in fact free, or at le
Re: warranties
Carol A. Kunze wrote: The question is, could a supplier provide a free download version of Linux, and then "sell" printed documentation and installation service together for $29.95. Based on what I just paid for a book on how to use one of my software programs that looks like a good deal to me. Sure. In fact, one could package the download/installation, or the first part thereof, as a Windows program, and sell it to people who have Windows preinstalled (i.e. nearly everyone). In that case the box would contain a floppy disk, but would not contain "Linux" as such. This business method is dedicated to the public domain; I disclaim all patents on it. Remember, we aren't talking about liability here. If Redhat is so stupid as to not honor returns (which is what the standard limited warranty is in every other industry), Indeed, the Microsoft EULA provides for replacement within 90 days if the product does not conform to its documentation, though it disclaims all other warranties including implied ones (insofar as local law permits). Here is the relevant passage from the EULA packaged with Word 95: # LIMITED WARRANTY. Microsoft warrants that (a) the SOFTWARE PRODUCT # will perform substantially in accordance with the accompanying written # materials for a period of ninety (90) days from the date of receipt, # and (b) any Support Services provided by Microsoft shall be # substantially as described in applicable written materials provided to # you by Microsoft, and Microsoft support engineers will make # commercially reasonable efforts to solve any problem issues. Some # states and jurisdictions do not allow limitations on duration of an # implied warranty, so the above limitation may not apply to you. To the # extent allowed by applicable law, implied warranties on the SOFTWARE # PRODUCT, if any, are limited to ninety (90) days. # # CUSTOMER REMEDIES. Microsoft's and its suppliers' entire liability # and your exclusive remedy shall be, at Microsoft's option, either (a) # return of the price paid, if any, or (b) repair or replacement of the # SOFTWARE PRODUCT that does not meet Microsoft's Limited Warranty and # which is returned to Microsoft with a copy of your receipt. This # Limited Warranty is void if failure of the SOFTWARE PRODUCT has # resulted from acident, abuse, or misapplication. Any replacement # SOFTWARE PRODUCT will be warranted for the remainder of the original # warranty period or thirty (30) days, whichever is longer. Outside the # United States, neither these remedies nor any product support services # offered by Microsoft are available without proof of purchase from an # authorized international source. # # NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE # LAW, MICROSOFT AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND # CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, # IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR # PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE # PRODUCT, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. # THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE # OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. Setting aside what the parties may agree to differently in a license, A shaky business anyhow, considering that shrink-wrap licenses are plainly contracts of adhesion. E.g. I suspect (IANAL; TISNLA) that shrink-wrap covenants that purport to waive the normal rule that construes the language of a contract strictly against the drafting party (in the ATT public license, e.g.) are void because against public policy. -- There is / one art || John Cowan [EMAIL PROTECTED] no more / no less || http://www.reutershealth.com to do / all things || http://www.ccil.org/~cowan with art- / lessness \\ -- Piet Hein
Re: warranties
on Tue, Jan 30, 2001 at 05:23:14AM -0800, Carol A. Kunze ([EMAIL PROTECTED]) wrote: I do not believe implied warranties should apply to open source software. IAAL, however, IANYL and this is not intended, nor should it be construed as legal advice. I will confine my remarks to one point, although there are others. Implied warranties on open source software do not make sense because there is no license income to support granting a warranty. I think you'll find general agreement with this viewpoint here, once all parties understand you're talking about _implied_, not _explicit_ warrantees. I believe there's confusion on this point in David Johnson's response. Free software is more or less predicated on the principle that a free software license can disclaim implied warrantees and laibility. With the slate wiped clean, _express_ warrantees or service contracts can be provided, as value-added service, and a revenue stream. I also suspect I know where this is headed. I know Carol from the CNI-COPYRIGHT mailing list and her work with UCITA (she graciously offerred assistance as I prepared my licensing presentation at last summer's O'Reilly Open Source Conference). I suspect a UCITA plug in the offing, though I doubt it will be warmly received here. Let me first note that this view does not include express warranties, described in statutes as "an affirmation of fact or promise, . . . including by advertising, . . . any description . . . . " Exactly. There can be no license income because every copy carries with it the right for the user to make more copies and to distribute those copies in competition with the original supplier. One cannot extract a profit on software under this scenario - at least not for long. So in practice, it is free beer. Business-issue quibble: I don't know that this is the case. Risk-averse organizations themselves (e.g.: businesses) typically benefit from the service, support, and guarantees available through commercial distribution of free software. Last I heard, Red Hat was still generating significant revenues on "direct software sales" -- shrinkwrap and service-bundled sales. Red Hat's standard Linux product sells on disks for $29.95 with printed documentation and installation service. It competes with Red Hat's own free download version. It also competes with the Red Hat Linux version distributed on disks by Cheapbytes for $4.99. ...and with various other bundles ranging in price to several hundreds of dollars, possibly thousands, per sale. The bits are free. The chrome, services, and support, are not. Note also that it isn't necessary for RH to support the development effort for all software under its lable, but merely the aggregation, anciallary documentation, and administrative support tools RH itself provides. Market economics will not tolerate a profit on the software under this competitive scenario. In fact, Red Hat is selling the medium, printed documentation and services for $29.95, but the software is free. If Red Hat could extract a profit, someone would immediately set up a competing business to undercut its price, and then that price would be undercut by another distributor and so on until the price was reduced back to zero. Effectively the cost floor appears to be ~$10-20 (including shipping and handling) for a delivered disk set for a distro. Or free download. Keep in mind, Windows operating system sells for what, about $200? $319 for the professional version last time I checked. OT: The Register did a rough valuation of what the "fair market cost" of a GNU/Linux distro would be, some years ago, arriving at something on the order of $5000, IIRC. There are also unanswered questions with respect to open source and warranties. Microsoft gets paid for every user of Windows (discounted price of $1,199 for 10 users). Compare this to a small business which "buys" a copy of Linux for $29.95 and makes 9 more copies. Has the supplier warranted 10 copies or 10 users? Given the present disclaimers in most free software licenses, the correct answer is, barring explicit warrantee, zero. The issue is worse when it comes to the actual authors who may sell some free software basically for the price of the disks: "If free-software authors . . . find themselves getting sued over the performance of the programs they've written, they'll stop contributing free software to the world. It's to our advantage as users to help the author protect this right." -- Bruce Perens, Open Sources: Voices from the Open Source Revolution, 1999 Given that open source software does not generate license income, implying a warranty is not reasonable. Put another way, open source software cannot even afford to win a warranty lawsuit. Again, no argument, this is commonly accepted fact. It is *not*, AFAIU, any rationale for adoption of UCITA. Ther
Re: warranties
on Wed, Jan 31, 2001 at 12:58:46PM -0800, Carol A. Kunze ([EMAIL PROTECTED]) wrote: on Tue, Jan 30, 2001 at 05:23:14AM -0800, Carol A. Kunze ([EMAIL PROTECTED]) wrote: Given that open source software does not generate license income, implying a warranty is not reasonable. Put another way, open source software cannot even afford to win a warranty lawsuit. Again, no argument, this is commonly accepted fact. David seems to have a different opinion. It is *not*, AFAIU, any rationale for adoption of UCITA. There are existing conventions, if not legal doctrines, restricting the imposition of implied warrantees for freely performed services -- e.g.: good samaterian laws -- and, I'm given to understand, for advice, instructions, recipies, technical data, etc., published in books and magazines. This might be an area to explore. If specific carveouts for free software are required, there are far better vehicles than UCITA to accomplish this task. As you're stating what I believe is a commonly accepted truth in the free software world, I have to ask: what's your point? I'm not sure how I can be any more clear. As I said in the beginning, "I do not believe implied warranties should apply to open source software." OK. Just, knowing your background, thought I'd raise the other flag. Surprising as it may seem, people have been known to post here with agendas. How about this: I think a more appropriate rule would be that there is no warranty on open source software unless one is expressly offered. I'll ponder this. I'm not sure it's necessary, or even advantageous. The present regime appears to work, you suggest as much. Blanket license might open avenues for abuse, though frankly no specifics come to mind at the moment. My bandwidth will likely be greatly reduced over the next few weeks, don't expect rapid response. -- Karsten M. Self [EMAIL PROTECTED]http://kmself.home.netcom.com/ What part of "Gestalt" don't you understand? There is no K5 cabal http://gestalt-system.sourceforge.net/ http://www.kuro5hin.org PGP signature
Re: warranties
on Tue, Jan 30, 2001 at 05:23:14AM -0800, Carol A. Kunze ([EMAIL PROTECTED]) wrote: I do not believe implied warranties should apply to open source software. IAAL, however, IANYL and this is not intended, nor should it be construed as legal advice. I will confine my remarks to one point, although there are others. Implied warranties on open source software do not make sense because there is no license income to support granting a warranty. I think you'll find general agreement with this viewpoint here, once all parties understand you're talking about _implied_, not _explicit_ warrantees. I believe there's confusion on this point in David Johnson's response. He didn't sound confused to me. David? This is not the first time I have heard the viewpoint that imposing warranties on open source/free software is a reasonable thing to do. Free software is more or less predicated on the principle that a free software license can disclaim implied warrantees and laibility. With the slate wiped clean, _express_ warrantees or service contracts can be provided, as value-added service, and a revenue stream. I also suspect I know where this is headed. I know Carol from the CNI-COPYRIGHT mailing list and her work with UCITA (she graciously offerred assistance as I prepared my licensing presentation at last summer's O'Reilly Open Source Conference). I suspect a UCITA plug in the offing, though I doubt it will be warmly received here. Let me first note that this view does not include express warranties, described in statutes as "an affirmation of fact or promise, . . . including by advertising, . . . any description . . . . " Exactly. There can be no license income because every copy carries with it the right for the user to make more copies and to distribute those copies in competition with the original supplier. One cannot extract a profit on software under this scenario - at least not for long. So in practice, it is free beer. Business-issue quibble: I don't know that this is the case. Risk-averse organizations themselves (e.g.: businesses) typically benefit from the service, support, and guarantees available through commercial distribution of free software. Last I heard, Red Hat was still generating significant revenues on "direct software sales" -- shrinkwrap and service-bundled sales. Red Hat's standard Linux product sells on disks for $29.95 with printed documentation and installation service. It competes with Red Hat's own free download version. It also competes with the Red Hat Linux version distributed on disks by Cheapbytes for $4.99. ...and with various other bundles ranging in price to several hundreds of dollars, possibly thousands, per sale. The bits are free. The chrome, services, and support, are not. Note also that it isn't necessary for RH to support the development effort for all software under its lable, but merely the aggregation, anciallary documentation, and administrative support tools RH itself provides. Market economics will not tolerate a profit on the software under this competitive scenario. In fact, Red Hat is selling the medium, printed documentation and services for $29.95, but the software is free. If Red Hat could extract a profit, someone would immediately set up a competing business to undercut its price, and then that price would be undercut by another distributor and so on until the price was reduced back to zero. Effectively the cost floor appears to be ~$10-20 (including shipping and handling) for a delivered disk set for a distro. Or free download. Keep in mind, Windows operating system sells for what, about $200? $319 for the professional version last time I checked. OT: The Register did a rough valuation of what the "fair market cost" of a GNU/Linux distro would be, some years ago, arriving at something on the order of $5000, IIRC. There are also unanswered questions with respect to open source and warranties. Microsoft gets paid for every user of Windows (discounted price of $1,199 for 10 users). Compare this to a small business which "buys" a copy of Linux for $29.95 and makes 9 more copies. Has the supplier warranted 10 copies or 10 users? Given the present disclaimers in most free software licenses, the correct answer is, barring explicit warrantee, zero. Warranty disclaimers can be challenged on a number of grounds - the clause was not conspicuous, the user did not agree, the user did not have notice of the disclaimer, etc. There is still risk here, particularly with open source which is more likely to be distributed informally. But in fact, I'm discussing what the appropriate default rule is in the first place, not whether it can be changed by disclaimer. The issue is worse when it comes to the actual authors who may sell some free software basically for the price of the disks: "If free-software authors . . . find
warranties
I do not believe implied warranties should apply to open source software. IAAL, however, IANYL and this is not intended, nor should it be construed as legal advice. I will confine my remarks to one point, although there are others. Implied warranties on open source software do not make sense because there is no license income to support granting a warranty. Let me first note that this view does not include express warranties, described in statutes as "an affirmation of fact or promise, . . . including by advertising, . . . any description . . . . " The implied warranty of merchantability is that the product "is fit for the ordinary purpose for which such computer programs are used." No one really knows what this means in the context of software. Everyone (at least within my knowledge), proprietary and open source alike, disclaims this warranty. There can be no license income because every copy carries with it the right for the user to make more copies and to distribute those copies in competition with the original supplier. One cannot extract a profit on software under this scenario - at least not for long. So in practice, it is free beer. Red Hat's standard Linux product sells on disks for $29.95 with printed documentation and installation service. It competes with Red Hat's own free download version. It also competes with the Red Hat Linux version distributed on disks by Cheapbytes for $4.99. Market economics will not tolerate a profit on the software under this competitive scenario. In fact, Red Hat is selling the medium, printed documentation and services for $29.95, but the software is free. If Red Hat could extract a profit, someone would immediately set up a competing business to undercut its price, and then that price would be undercut by another distributor and so on until the price was reduced back to zero. Keep in mind, Windows operating system sells for what, about $200? $319 for the professional version last time I checked. There are also unanswered questions with respect to open source and warranties. Microsoft gets paid for every user of Windows (discounted price of $1,199 for 10 users). Compare this to a small business which "buys" a copy of Linux for $29.95 and makes 9 more copies. Has the supplier warranted 10 copies or 10 users? The issue is worse when it comes to the actual authors who may sell some free software basically for the price of the disks: "If free-software authors . . . find themselves getting sued over the performance of the programs theyve written, theyll stop contributing free software to the world. Its to our advantage as users to help the author protect this right." -- Bruce Perens, Open Sources: Voices from the Open Source Revolution, 1999 Given that open source software does not generate license income, implying a warranty is not reasonable. Put another way, open source software cannot even afford to win a warranty lawsuit. Carol ^^ Carol A. Kunze Napa, CA [EMAIL PROTECTED] 707.966.5211 707.371.1807 (fax) ^^
[OT] Warranties
On Monday 29 January 2001 03:00 am, Angelo Schneider wrote: I completely agree. In fact, my political views are on the extreme side of Laissez Faire :-) But not disclosing a disclaimer of warranty at time of sale is tantamount to fraud. You can sell as many copies of warranty-less BS Office as you want, and you'll have no problem with me. So long as the customer is made aware of that warranty-less state at the time of sale. I completly dissagree: what about a medical? He may use any cure? Regardless if it is applicable under the circumstances of his patient? Now we're leaving the realm of Open Source and entering the ever acrimonious domain of Political Economy. Setting aside my innate distrust of any physician who actually offers a guarantee, let me just bring to your attention one possible scenario: Joe Patient is dying of cancer and he hears of an experimental cure... This sounds silly to me, especialy if you try to hold the rights of the seller higher than the rights of that one who feels the need to buy from him. The rights of the the seller and buyer are absolutely equal. The are both human beings, and in my world view (which differs from my government's) all human beings possess the exact same rights regardless of their economic status. A commercial transaction cannot be legal without a voluntary agreement by both sides. If one or the other side agrees involuntarily (such as through fraud), that is a criminal matter, and nothing to do with warrantees. -- David Johnson ___ http://www.usermode.org
