Quite the string of self-replies. Sorry about that. Didn't expect to turn up a run of interesting precedents with "merchantability" in various circuits after "implied warranty" was such a dud in the Ninth.
In short, I begin to fear that _any_ GPL contributor who isn't shielded by having acted in the course of regular employment may be at risk of _personal_liability_ for damages consequential to negligence if their code sucks, in a number of jurisdictions including my home state. IANAL, TINLA. I wrote: > It would not surprise me to find that many jurisdictions have a > similar technical standard for disclaimers of implied warranties and > that the language of the GPL meets them. ... And in fact that standard is part of the Uniform Commercial Code (appearing in various state codes as section 2316 or 2.316; see 2314-2317 generally). But if a Linux distro qualifies as a "consumer good", other laws may apply -- conspicuously California's Song-Beverly Consumer Warranty Act ( http://caselaw.lp.findlaw.com/cacodes/civ/1792-1795.7.html ). I am by no means convinced that the GPL (or any other commonly used open source license) meets the standard of "as is" / "with all faults" notice prescribed in this Act. For a sense of how big a deal the availability of a contract (as opposed to tort) cause of action is, see McManus v. Fleetwood ( http://caselaw.lp.findlaw.com/data2/circs/5th/0151045p.pdf ) section II.A.4. You can get class action certification and a jury trial without showing any injury to yourself whatsoever if there is a triable question of fact about whether a product is defective with respect to its "ordinary purpose". That's anchored in UCC 2314; adding in the tighter Song-Beverly standard for disclaimer of the implied warranty of merchantability and its provision that "the retail seller shall have a right of indemnity against the manufacturer", a California plaintiff may be able to prove class action liability on any Linux contributor whose code contains a "negligent" imperfection. You might have to have paid something to someone for the product in order to demonstrate that you "did not receive the benefit of [your] bargain". But there isn't necessarily a need to demonstrate a per-unit money trail from product to "manufacturer" (software developer) in order for the latter to be liable. There are lots of ways in which even "amateur" open source developers get subsidized by the companies that benefit from the maturation of Linux and friends for commercial purposes. Cheers [sort of], - Michael (IANAL, TINLA) P. S. Evidently, if Daniel Wallace had a clue and a cause of action justifying an unfair competition claim -- the Sherman Act and Clayton Act were odd choices, Robinson-Patman or state law would have been better -- he should have sought class certification and injunctive relief under Federal Rule of Civil Procedure 23(b)(2). If Dan Ravicher is reading, he might consider boning up on antitrust law, because Wallace is unlikely to be the last to go after the FSF and its friends -- and that $4 million pot for GPL promotion and legal defense won't go far if it all has to be spent on outside counsel.
