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>
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gpl-lgpl.tex
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gpl-lgpl.tex
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@ -2398,7 +2398,7 @@ copyright licenses.
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Most warranty disclaimer language shouts at you. The
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\href{http://www.law.cornell.edu/ucc/2/2-316}{Uniform Commercial
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Code~\S2-316}, which most of the USA's states and commonwealths have adopted as their local
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law, requires that disclaimers of warranty be ``conspicuous''.
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law, allows disclaimers of warranty, provided that the disclaimer is ``conspicuous''.
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There is apparently general acceptance that \textsc{all caps} is the
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preferred way to make something conspicuous, and that has over decades worked
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its way into the voodoo tradition of warranty disclaimer writing.
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@ -2419,13 +2419,41 @@ of GPL\@.\footnote{One of the authors of this tutorial, Bradley M.~Kuhn, has
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answered Kuhn's requests for case law that argues THIS IS INHERENTLY MORE
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CONSPICUOUS \textsc{Than this is}.}
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Some have argued the GPL is unenforceable in some jurisdictions because
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its disclaimer of warranties is impermissibly broad. However, GPLv2~\S11
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contains a jurisdictional savings provision, which states that it is to be
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interpreted only as broadly as allowed by applicable law. Such a
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provision ensures that both it, and the entire GPL, is enforceable in any
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jurisdiction, regardless of any particular law regarding the
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permissibility of certain warranty disclaimers.
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Critics have occasionally questioned GPL's enforceability in some jurisdictions because its
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disclaimer of warranties is impermissibly broad. However,
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critics
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have generally failed to articulate specific precedents in their
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jurisdictions that would directly indicate a problem with GPL's warranty
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disclaimer. Meanwhile,
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\href{http://www.cisg.law.pace.edu/cisg/text/treaty.html#35}{Article 35 of
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the United Nations Convention on Contracts for the International Sale of
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Goods} (often abbreviated ``CIGS'', which
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\href{https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=228&chapter=10&lang=en}{many
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countries have adopted}) permits the disclaimer of warranties, so
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jurisdictions adopting this treaty allow some form of warranty
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disclaimer\footnote{Scholars continue to debate to what extent CISG applies to software
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licenses. For example, Diedrich concluded that ``CISG is prima facie
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applicable to international transactions involving the transfer of computer
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software for a price'', but Sono disagrees with this ``prevailing view'',
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presenting an ``analysis [that] restricts the applicability of the CISG to
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software transactions by excluding `license contracts'''. (See
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\href{http://www.cisg.law.pace.edu/cisg/biblio/diedrich1.html}{Frank
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Diedrich, \textit{The CISG and Computer Software Revisited}}, 6 Vindobona
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Journal of International Commercial Law and Arbitration, Supplement 55--75
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(2002), and
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\href{http://www.cisg.law.pace.edu/cisg/biblio/sono6.html}{Hiroo Sono,
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\textit{The Applicability and Non-Applicability of the CISG to Software
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Transactions}}, Camilla B. Andersen \& Ulrich G. Schroeter eds., Sharing
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International Commercial Law across National Boundaries: Festschrift for
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Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds
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\& Hill Publishing (2008) 512--526.)}.
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Nevertheless, to account for possible jurisdictional variances regarding this
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or any other issue, GPLv2~\S11 contains
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a jurisdictional savings provision, which
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states that it is to be interpreted only as broadly as allowed by applicable
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law. Such a provision ensures that both it, and the entire GPL, is
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enforceable in any jurisdiction, regardless of any particular law regarding
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the permissibility of certain warranty disclaimers.
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Finally, one important point to remember when reading GPLv2~\S11 is that GPLv2~\S1
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permits the sale of warranty as an additional service, which GPLv2~\S11 affirms.
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