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Re: UnrealIRCd License (Click-Through issue)

* Edmund GRIMLEY EVANS (edmundo@rano.org) [030901 12:35]:
> I'm not really sure what it means to make a "no warranty" clause
> "legally binding". If you are trying to avoid getting sued then you
> might be better off if you make a sincere effort to inform users of
> the potential risks rather than rely on some legal gobbledygook to
> give you magical protection. I don't know which jurisdictions you're
> interested in, but I've been told that disclaimers don't help much
> under German law, for example.[*]

The mail is only about German law, and "we" means German jurists (and
I'm not a lawyer). Also it's a rough picture, so some details are a
bit inaccurate, but I focused on free software. You can read the laws
(if you understand German well enough, perhaps with help from
http://dict.leo.org/ ) via http://www.rechtliches.de/

The relevant law is the "Buergerliches Gesetzbuch", Paragraph 305ff.

And: I don't know international law good enough to decide if (and
when) german law is applicable to software in debian. It is certainly
applicable between any german user and me, a german subject and
resident. But almost everything else is discussable.

Civil law is in german mostly to the disposition of the parties of any
contract. So, the law just says a default, if not said explicit otherwise.

We treat a general disclaimer (like any part of any license that you
didn't negotiate on a peer-to-peer basis with the probability of
changing the part) as a so called "common clause", in German
"Allgemeine Geschaeftsbedingung", or short: AGB.

An AGB is only valid if it doesn't conflict with a veto from
- normal law and
- special law regarding the AGBs.

The special law vetos the use of AGBs that are discriminating the
partner of the contract (means for us: the user) undue. This is
assumed in doubt if the AGBs are contradicting a important fundamental
idea of a (dispositible) law.

It is explicit not allowed to exclude responsibility for any
deliberate act or gross negligence with a AGB if the contract partner
is not a firm. If the contract partner is a firm, it is perhaps
possible that the exclusion is void due to the paragraph above, but
the courts have to respect "business traditions" here, so that e.g.
the GPL (and other free licenses) could perhaps be treated as such and
be valid in total, but this sentence is only in relation to firms.

If the clause of a AGB is not allowed, than this clause is totally
void. A clause with words like "as permitted by applicable law" is
always totally void.

Now to the "legal defaults":

If we treat a free software as a donation, than the legal default is
to be only responsible for deliberate act or gross negligence of your


This means: In any case, and independent of the words of the used
license: If you don't get money, you're always responsible for
deliberate acts or gross negligence of your actions, but for nothing
else. Warning a user (e.g. "this is in pre-alpha state") can be one
step to do your duties. But if you're warned of a problem of your
software (or a just not warned because you're deleting such mail
unread), you must make a resonable action in resonable time. This can
be adding a proper warning ("I have received reports of crashed hard
discs, but I can't trace or even resolve this as no-one has given me
enough details" or "There are signs of data loss, but I don't have
time to trace this now. I'm sorry.") or with changing code.

A "no warranty" clause does have no formal legal binding. However, I
would argue in court that this clause should have warned you, and that
I did fullfill my legal must with this clause (and with other warnings
in the documentation).

If you however get money, you're by default far more responsible. But
that's not the case we're normally discussing here, and who gets money
does normally not just use any default open source license for this.
So I'm not saying anything else to this case.

   PGP 1024/89FB5CE5  DC F1 85 6D A6 45 9C 0F  3B BE F1 D0 C5 D1 D9 0C

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