Re: Questions about legal theory behind (L)GPL
On Tue, 11 Jan 2005 10:49:08 +0100, Batist Paklons <firstname.lastname@example.org> wrote:
> On Mon, 10 Jan 2005 21:02:35 -0800, Michael K. Edwards
> <email@example.com> wrote:
> > The exoneration precedent (no penetrating the veil of agency via tort
> > if there's contract language to cover the conduct) is very
> > interesting. It suggests that anyone who accepts copyright license
> > under the GPL is bound by the "no warranty" clause, unless it's
> > overridden by statutory "fair trade" provisions. Right?
> You are right, but the 'no warranty clause' is somewhat obnoxious as
> an example, because it will be overridden. Under Belgian civil law it
> is not possible to exonerate for every liability. You cannot exonerate
> for intentional damage (for instance a program released under GPL that
> intentional causes damage). And then there is some special consumer
> protection and product liability in Europe that even goes further.
That's the kind of statutory provision I had in mind -- implicit
limitations on what terms a contract may contain. As I understand
you, contract terms can't be used to extract impunity for malicious
conduct or some kinds of product liability. So it's not that the veil
of agency is penetrated, it's that conduct outside the contract (after
it is implicitly edited by statute) doesn't count as agency.
> But the more interesting aspect of the veil of agency (I like that
> term - it is quite close to how we call it), is that someone who is
> not the copyright holder, but worked on the software (e.g. outsourcing
> with a clause that transfers all economic authorship rights to the
> contractor), cannot be sued for liability under the GPL. Instead the
> copyright holder must be sued, and will not be held liable insofar as
> he is legally allowed.
If, of course, the GPL is a contract between copyright holder(s) and