Re: OSD && DFSG convergence

[tb@becket.net (Thomas Bushnell, BSG)]

Russell Nelson <nelson@crynwr.com> writes:

> Oh well.  I guess if you were to talk to a lawyer you might get a
> different opinion.  I don't think I'm going to be able to convince
> you.  In some jurisdictions, yes, you don't need to form a contract to
> disclaim warranty.  In others, you do.  You don't *need* to lock a
> file before writing to it.  It's just the smart thing to do if you
> expect some other process to be writing to it at the same time.
> Similarly, you don't *need* a contract to disclaim warranty --
> sometimes the warranty disclaimer alone is sufficient!  And sometimes
> you won't munge your file if you don't lock it!
>
> If you talk to a lawyer, he's going to advise you to 1) disclaim
> warranty, and 2) form a contract.

Of course!  A warranty disclaimer by contract is much stronger; in
many jurisdictions a disclaimer by contract is valid whereas one not
by contract is not.  

But since in general free software is not accompanied by a contract
(the GPL, for example, is explicitly not a contract), we don't have
available to us the "sign a contract" method.  

You said earlier that you *must* have a contract to disclaim, as if a
non-contractual disclaimer is everywhere void.  Now you recognize the
truth, it seems, that a non-contractual disclaimer is, somewhere,
sometimes, a useful thing.  Since Free Software in general doesn't
work by contract, we must take the best we can get, which is a
non-contractual disclaimer.

> In general, you can contract around warranty law.

I agree completely--for *some* jurisdictions.  For others, public
policy has been deemed to be better served by warranties, and
contracts to disclaim them have been found contrary to public policy.

Thomas