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Re: Latin they'll be screaming.


From: David Kastrup
Subject: Re: Latin they'll be screaming.
Date: Tue, 19 Aug 2008 09:18:25 +0200
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

Rjack <me@there.com> writes:

> FOSS enthusiasts have won a Pyrrhic victory in Jacobsen v.
> Katzer. Pyrrhic because a "condition" is a term of art in
> contract interpretation. We now know that all copyright license
> containing "conditions" including the Artistic license are
> interpreted under the state's common law of contracts. When a
> license condition is not met the license remains a contract:
>
> "('[A] condition precedent is a condition precedent to
> performance under the contract, not formation of the contract.
> When a condition precedent is not satisfied, it relieves a party
> to the contract of the obligation to perform.

Which means that the copyright holder of a GPLed work can't any longer
be held to his part of the deal if the user of his work does not obey
the licensing conditions.  What are his parts of the deal?

      15. Disclaimer of Warranty.

      THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY
    APPLICABLE LAW.  EXCEPT WHEN OTHERWISE STATED IN WRITING THE
    COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS"
    WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
    INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
    MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  THE ENTIRE
    RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU.
    SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL
    NECESSARY SERVICING, REPAIR OR CORRECTION.

      16. Limitation of Liability.

      IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN
    WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES
    AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR
    DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
    DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM
    (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED
    INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE
    OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH
    HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
    DAMAGES.

      17. Interpretation of Sections 15 and 16.

      If the disclaimer of warranty and limitation of liability provided
    above cannot be given local legal effect according to their terms,
    reviewing courts shall apply local law that most closely
    approximates an absolute waiver of all civil liability in connection
    with the Program, unless a warranty or assumption of liability
    accompanies a copy of the Program in return for a fee.


So what happens is that when a disclaimer of warranty and liability is
not held possible by the laws, then the implied lawful warranties don't
kick in if you have not met the licensing conditions.

For example, if I license software to you under the GPL that contains a
malicious virus I put in myself, and you don't follow the GPL license
conditions, you put yourself out of your possibility as a licensed
recipient to sue me for it.

That's all.

> It does not negate the existence of the contract or the binding
> contractual relationship of the parties.'); Wells Fargo Bank, N.A.,
> v. The United States; 88 F.3d 1012 (CAFC 1996).

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum


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