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

["Michael K. Edwards" <m.k.edwards@gmail.com>]

Quite the string of self-replies.  Sorry about that.  Didn't expect to
turn up a run of interesting precedents with "merchantability" in
various circuits after "implied warranty" was such a dud in the Ninth.

In short, I begin to fear that _any_ GPL contributor who isn't
shielded by having acted in the course of regular employment may be at
risk of _personal_liability_ for damages consequential to negligence
if their code sucks, in a number of jurisdictions including my home
state.  IANAL, TINLA.

I wrote:
> 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.  ...

And in fact that standard is part of the Uniform Commercial Code
(appearing in various state codes as section 2316 or 2.316; see
2314-2317 generally).  But if a Linux distro qualifies as a "consumer
good", other laws may apply -- conspicuously California's Song-Beverly
Consumer Warranty Act (
http://caselaw.lp.findlaw.com/cacodes/civ/1792-1795.7.html ).  I am by
no means convinced that the GPL (or any other commonly used open
source license) meets the standard of "as is" / "with all faults"
notice prescribed in this Act.

For a sense of how big a deal the availability of a contract (as
opposed to tort) cause of action is, see McManus v. Fleetwood (
http://caselaw.lp.findlaw.com/data2/circs/5th/0151045p.pdf ) section
II.A.4.  You can get class action certification and a jury trial
without showing any injury to yourself whatsoever if there is a
triable question of fact about whether a product is defective with
respect to its "ordinary purpose".  That's anchored in UCC 2314;
adding in the tighter Song-Beverly standard for disclaimer of the
implied warranty of merchantability and its provision that "the retail
seller shall have a right of indemnity against the manufacturer", a
California plaintiff may be able to prove class action liability on
any Linux contributor whose code contains a "negligent" imperfection.

You might have to have paid something to someone for the product in
order to demonstrate that you "did not receive the benefit of [your]
bargain".  But there isn't necessarily a need to demonstrate a
per-unit money trail from product to "manufacturer" (software
developer) in order for the latter to be liable.  There are lots of
ways in which even "amateur" open source developers get subsidized by
the companies that benefit from the maturation of Linux and friends
for commercial purposes.

Cheers [sort of],
- Michael
(IANAL, TINLA)

P. S.  Evidently, if Daniel Wallace had a clue and a cause of action
justifying an unfair competition claim -- the Sherman Act and Clayton
Act were odd choices, Robinson-Patman or state law would have been
better -- he should have sought class certification and injunctive
relief under Federal Rule of Civil Procedure 23(b)(2).  If Dan
Ravicher is reading, he might consider boning up on antitrust law,
because Wallace is unlikely to be the last to go after the FSF and its
friends -- and that $4 million pot for GPL promotion and legal defense
won't go far if it all has to be spent on outside counsel.