I can offer something without entering a relationship with each recipient. I have software published on SourceForge; I entered into an agreement with SourceForge but I have no relationship with the people who downloaded my stuff from there. The people who downloaded might or might not have a relationship with SourceForge; that is no concern of mine. Likewise with Tripod, and other places where I have published stuff.
Mahesh, you're switching back and forth between liability and warranty, using the words interchangeably, which is confusing. Warranty is a product that can be offered or not offered. Implied warranties are an implicit part of another product (which can be expressly excluded in many places). Liability is not a product to be offered; it's a completely different beast. If there is no contract, you can't contract away liability. But if there's no direct relationship between you and the recipient (such as a contract), it's hard to conceive of a way that you could be held liable in the first place. At least I, a mere software developer, cannot conceive of one. As for warranty, I was sure that I can always say I'm offering something "as is". That's just a statement that I'm not offering any warranty products in addition to my software product. As for implicit warranties of merchantability etc., I will always use a license that says those don't apply, but why should the recipient care about merchantability if they didn't buy it? (And if they did buy it, they probably have a contract with whoever sold it to them, but not with me because I wasn't involved in the transaction.) "THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW" - I'm guessing the GPL says that for other reasons, that have to do with the fact that some jurisdictions don't let you remove the implied warranties of merchantability and fitness. I doubt this matters much for the software that FSF gives away, although it might make a difference for the CDs that they sell. I am only guessing. ----- Original Message ----- From: "Mahesh T Pai" <[EMAIL PROTECTED]> To: "David Johnson" <[EMAIL PROTECTED]> Cc: <[EMAIL PROTECTED]> Sent: Saturday, November 02, 2002 5:10 AM Subject: Re: a proposed change to the OSD > > > David Johnson wrote: > > > I still haven't come to grips yet with the concept that a contract is required > > for disclaimers of warranty. It seems to me that there must be another > > mechanism that achieves the same result. > > > You have to make the terms under which you are offering something > clear. Situations where a single person (eg. a software developer) > entering into relationships with several persons ( eg, by distributing > several copies of the same s/w) on same terms (that is, under the same > license) are not always treated as *pure* (mark the word pure) > contractual by courts - at least, in the common-law world. > > When you disclaim liability you have to make such disclaimer it clear > and tell the court that you have informed the recipient of s/w that he > knew, at least you took sufficient steps to inform the other guy about > the existence of the disclaimer. If the relationship is contractual, > this disclaimer will help you, if not, (status based) nothing will. > > That is why, the GNU GPL (and most other licenses) use the phrase > "THERE IS NO WARRANTY FOR THE PROGRAM, TO THE *EXTENT PERMITTED BY > APPLICABLE LAW*" in paragraph 11. > > Regards, > Mahesh T Pai. > > > > > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 > -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
