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Clarify & expound on issue of warranty disclaimer

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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>
This commit is contained in:
Bradley M. Kuhn 2015-03-13 13:06:47 -07:00
parent e62b08eb9c
commit 4067c5f991
1 changed files with 36 additions and 8 deletions
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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.
@ -2419,13 +2419,41 @@ of GPL\@.\footnote{One of the authors of this tutorial, Bradley M.~Kuhn, has
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.