Re: Bug#317359: kde: ..3'rd "Help"->"About $KDE-app" tab calls th e GPL "License Agreement", ie; a contract.
In Texas, on the other hand, the scope for a court to find an implied
warranty of merchantability is far broader. Here's a quote from
Ameristar Jet Charter v. Signal Composites (
http://caselaw.lp.findlaw.com/data2/circs/5th/0011270cv0.html ):
<quote>
Under Texas law the warranty of merchantability is implied in every
transaction for the sale of goods if the seller is a merchant of goods
of that type. See Hininger v. Case Corp., 23 F.3d 124, 128 (5th Cir.
1994) (citing Tex. Bus. & Com. Code § 2.314(a)). Section 2.104 of the
Texas Business and Commercial Code provides that a "merchant" is:
a person who deals in goods of the kind or otherwise by his occupation
holds himself out as having knowledge or skill peculiar to the
practices or goods involved in the transaction or to whom such
knowledge or skill may be attributed by his employment of an agent or
broker or other intermediary who by his occupation holds himself out
as having such knowledge or skill.
Tex. Bus. & Com. Code § 2.104. In Nelson v. Union Equity Coop.
Exchange, 548 S.W.2d 352, 357 (Tex. 1977), the Texas Supreme Court
expansively construed the definition of merchant under the code as
"intended to apply to all but the most casual or inexperienced
sellers."
</quote>
On the other hand, later in the decision:
<quote>
Under Texas law, a buyer's damages on a breach of warranty
claim are the difference between the value of the goods as
accepted and the value of the goods as warranted, unless special
circumstances show proximate damages of a different amount. See
Tex. Bus. & Com. Code § 2.714(b).
</quote>
Even if the "value of the goods as warranted" is negligible, I can
imagine the existence of an implied warranty of merchantability
providing a hook on which to hang "special, incidental, or
consequential" damages in the event of negligence on the part of a GPL
author or contributor. Negligence within a contractual relationship
is a much lower standard than "the common law duty to exercise
reasonable care to prevent foreseeable harm" (quoted from Onita
Pacific in the last message).
So a GPL author or distributor who can't hold an end user to
acceptance of the warranty disclaimer might find himself on the
receiving end of a non-trivial breach of warranty lawsuit in Texas.
Comments from the legally skilled?
Cheers,
- Michael
(IANAL, TINLA)
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