Once more unto the breach, so to speak. I wrote: > 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.
Note that although the GPL does appear at first glance to have the necessary "AS IS" business in it, it has three potentially fatal defects: "BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE" (hardly true when the FSF condones Red Hat's trademark games), the absence of language stating that the licensee waives statutory indemnity provisions, and the lack of any obligation on the "retailer" to obtain assent to the no-warranty terms from end users. Song-Beverly doesn't contemplate warranty disclaimers from manufacturer to retailer, and explicitly gives the retailer a right of indemnity against the manufacturer for causes arising out of a breach of implied warranty of merchantability. And if you think about it, that's actually wise law. If a disclaimer of implied warranty isn't made quite conspicuous to the end user, the manufacturer shouldn't be permitted to stick the retailer with the bill for damages consequential to negligence in the design and implementation of the product. Not, at least, without a full-on executed contract between manufacturer and retailer that waives statutory indemnification requirements such as Song-Beverly's -- and the retailer's general liability underwriter may have something to say about that. ObDebian: this means that Debian and its associated legal entities, individual DDs and maintainers, and upstream source code suppliers may wind up in the position of indemnifying J. Random Debian Derivative Who Sells CDs Retail against product liability claims such as the "your LiveCD fried my G5 laptop" example I gave earlier. Ouch. Cheers, - Michael (IANAL, TINLA)
