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Re: Questions about legal theory behind (L)GPL

On Mon, 10 Jan 2005 21:02:35 -0800, Michael K. Edwards
<m.k.edwards@gmail.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[1].

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.

Kind regards

[1] two European directives that, each in their way, can cause liability:
directive n° 374 of 1985 on liability for defective products: if the
software is incorporated in a tangible product
directive n° 44 of 1999 on the sale of consumer goods, insofar as the
software isn't of the quality and performance which are normal in
goods of the same type and which the consumer can reasonably expect
(off course, the low price for open source software does lead to lower
both can easily be found on http://europa.eu.int/eur-lex

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