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Re: Bug#317359: kde: ..3'rd "Help"->"About $KDE-app" tab calls th e GPL "License Agreement", ie; a contract.

On 7/14/05, Patrick Herzig <patrick54@gmail.com> wrote:
> On 7/14/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> > This is not the 19th century...  the specific mechanics of a form are not an
> > issue like they once were.  An agreement does not need to be written, or
> > shook on, or any of that signed, sealed, and delivered stuff.
> Please note that I included implied agreements as a possible form of
> the mechanics of an agreement. This, however, does not make a copy of
> the GPL text an "agreement"  by itself. Only in combination with at
> least an implied agreement the whole thing becomes an agreement. Now I
> would concede and call the GPL an agreement if there is no
> conceiveable case where agreement and license text can be separated
> but as it is, the text of the GPL itself separates the vast majority
> of dealings with GPL software ("use") as out of scope.

Technically (AIUI, IANAL), the "agreement" is the entire understanding
between the parties, in whatever combination of writing and other
forms, while "contract" is the agreement as modified by statutory
overrides.  It becomes an "agreement" following "offer" and
"acceptance", and it's that "acceptance" which is here implied by
conduct.  The conduct that implies acceptance is the exercise of a
right that the offeree would not possess unless it had accepted the
offer -- in this case, not a right to use (which is generally
intrinsic to lawful possession and in any case explicitly disclaimed
as part of the matter of the agreement in GPL v2 -- but not in v1),
but a right to copy, modify and/or distribute that would otherwise be
reserved to the copyright holder.

> You feel that the warranty provisions don't cover enough protection
> from liability so you want to expand the scope of the GPL against its
> explicitly spelled out wording. That doesn't sound like a valid legal
> interpretation strategy. The more straightforward interpretation would
> be that the warranty provisions just don't apply to things that are
> out of the scope.

No, they just don't apply to people whose acceptance of the GPL cannot
be demonstrated.  If it can be demonstrated that someone passed along
an additional copy of a given GPL work to someone else, or otherwise
did things to it that would be copyright infringement if it weren't
for acceptance of the GPL, then I would expect the GPL terms to apply
to them also in their character as a user of that work -- and unless
it really is true that they didn't intend to accept the GPL and they
would rather take the hit for a not-very-willful copyright
infringement than lose some other cause of action.

> > But for the sake of everyone listening, I want to reiterate why this point is
> > important.  IF I am wrong, and the GPL is not a biding agreement, then the
> > warrenty provisions are void.  If they are void, Debian and all of the other
> > Linux distributers could be potentially liable for mechantability and other
> > exciting damages.  Does anyone here think that's a good thing?
> I actually don't consider the warranty provisions binding for cases of
> "use". When I use a piece of software that is being distributed to me
> it is up to the distributor to provide/void warranty as he is my
> partner in the transaction. Are the warranty provisions useless then?
> No. If I go after the person distributing to me for damages the
> warranty provisions protect the upstream author against the
> distributor "passing up the buck".

Agreed -- modulo non-disclaimable causes of action, of course, such as
fraud and intentional harm, and in the absence of a business
relationship between upstream and distributor that implies a duty to
indemnify.  Some jurisdictions reject insufficiently conspicuous
liability and warranty waivers on product labeling, especially in the
absence of real evidence that the customer noticed and agreed to them.
 There's also a limit to how much liability you can escape by
operating through an intermediate legal shell from which it's hard to
obtain redress.  Uploaders of abandonware clones take note.

> For the jurisdiction that I am in this is not really a Problem for
> Debian (=distributor) since good faith no-consideration transactions
> are by law limited in warranty anyway (incidentially much to the
> extent of the warranty provisions in the GPL). I guess other
> jurisdictions have similar protections against seeking damages from
> someone giving you a gift in good faith.

Such protections are by no means complete; if I hand a LiveCD to
someone for free and it fries their G5 laptop because it doesn't
tickle the power management circuitry right, somebody (me, the person
who mastered the LiveCD, the organization that oversaw the packaging
of that compiled kernel, who knows) may wind up paying for it despite
the kernel GPL.  Somewhere along the way it went from being published
information with a "do not try this at home unless you like Mac toast"
disclaimer to a product, "free beer" or not.

After researching implied warranties in the US a little bit, I know
little more about that particular question, other than that they vary
wildly from state to state in the absence of federal regulation of a
particular industry -- but I do know that I never want to own an RV, I
don't trust the FDA to regulate cosmetic surgery or the EPA to
regulate pesticides, and I'm never going to eat another
non-QAI-certified-organic banana.

- Michael

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