Re: Bug#317359: kde: ..3'rd "Help"->"About $KDE-app" tab calls th e GPL "License Agreement", ie; a contract.
What the heck, let's pull in another state in another circuit, Iowa
this time: Brunsman v. DeKalb Swine (
http://caselaw.lp.findlaw.com/data2/circs/8th/971135p.html ). This
opinion points to the sections of Iowa Code relevant to warranty
disclaimers, and states: "Under Iowa law, a court considering a claim
of unconscionability should consider the factors of assent, unfair
surprise, notice, disparity of bargaining power, and substantive
unfairness." This plaintiff lost because the warranty disclaimer met
the applicable statutory standard of wording and conspicuousness (
http://www.legis.state.ia.us/IACODE/1999/554/2316.html , if you're
curious) -- the existence of such a standard implies that the state's
law does not view such a disclaimer as substantively unfair -- and it
was a properly negotiated agreement in the other four respects named.
It would not surprise me to find that many jurisdictions have a
similar technical standard for disclaimers of implied warranties and
that the language of the GPL meets them. But clearly there's more to
it than good drafting and nominal assent, even if that assent were
demanded before use and not just before exercise of copyright license.
In the event that Linux, glibc, and GCC destroy the market for
commercial UNIXen and their compilers (as they bid fair to do), and
crowd the BSDs at least out of the server sector, that "disparity of
bargaining power" factor may yet undermine the GPL's warranty
disclaimer and expose distros (if not upstreams) to liabilities they
hadn't planned for.