applets, applications and static declarations

[Tom Anderson]

I must demur. Public domain lacks a critical element common to the open
source licenses cited: a disclaimer of warranty.

This business about public domain and warranty has always struck me as
fishy. IANAL, but i am certain that i give someone some PD software for
free, i am not implying a warranty. I may not have th power to disclaim a
warranty, but i don't need to, because one doesn't exist in the first
place.

The reason being that warranty can only exist where there is a contract,
such as a contract of sale, including the kind that is entered implicitly
when someone sells something to someone. However, a contract can only
exist where each party gives the other 'consideration', which is an odd
legal term which roughly means 'something of value'. See:

http://en.wikipedia.org/wiki/Consideration

The software is consideration on my part (assuming it's not worthless -
although if i wrote it, this isn't at all certain!), but i'm not receiving
any consideration from the person i'm giving the software to. Hence, no
contract, and hence, no warranty.

Note that this applies just as much to non-PD software that is given away
free, whether under an open source or proprietary license (as long as
there is no other form of consideration, at least).

<http://en.wikipedia.org/wiki/Uniform_Commercial_Code>

You'll notice that the only mention of warranty in that article is with
reference to buyers and sellers.

I presume, then, that what the shouty warnings about not using the
software in nuclear power plants etc are all about is not disclaiming
warranty, but pointing out to the recipient that no warranty exists. That,
i would guess, is to guard against a claim that the distributor gave the
recipient the impression that there was a warranty, and so deceived them
to some deterimental end or something. Seems silly, but that's commercial
law for you. Anyway, i don't see any reason you couldn't put such a notice
on PD software. People would be free to take it off, but if they then
redistributed it, any theoretical liability for deception would fall on
them, not the original author.

tom

 

[John B. Matthews]

I presume, then, that what the shouty warnings about not using the
software in nuclear power plants etc are all about is not disclaiming
warranty, but pointing out to the recipient that no warranty exists.

IUUC, the "shouty" part may come from the definition of "Conspicuous"
[§2-103] and "Exclusion or Modification of Warranties" [§2-316]:

<http://www.law.cornell.edu/ucc/2/article2.htm#s2-101>

Creative application of "Buyer" and "Seller" is the litigator's
stock-in-trade.

 

[Tom Anderson]

I presume, then, that what the shouty warnings about not using the
software in nuclear power plants etc are all about is not disclaiming
warranty, but pointing out to the recipient that no warranty exists.

IUUC, the "shouty" part may come from the definition of "Conspicuous"
[?2-103] and "Exclusion or Modification of Warranties" [?2-316]:

<http://www.law.cornell.edu/ucc/2/article2.htm#s2-101>

Aha, yes, that certainly looks likely.

Creative application of "Buyer" and "Seller" is the litigator's
stock-in-trade.

True, but there are limits. Lawyers aren't wizards, and despite the
popular impression that it's simply the party with the biggest, strongest
lawyers that wins, as they were some kind of pokemon with sharp suits, if
the law says so, it's so.

From the UCC:

2-106. (1) In this Article unless the context otherwise requires
"contract" and "agreement" are limited to those relating to the present
or future sale of goods. "Contract for sale" includes both a present
sale of goods and a contract to sell goods at a future time. A "sale"
consists in the passing of title from the seller to the buyer for a price
(Section 2-401).

The title here is to the license to use the software. Where's the price?

Something i failed to mention in my previous post is that all this is
based on English common law, so it only applies to jurisidictions which
have inherited that, which means the UK, the USA, and i assume Canada,
Australia, etc. Civil law jurisdictions mostly don't, AIUI, have the
concept of consideration, so it's possible that there, giving someone a
gift (which is essentially what is happening here) creates a contract,
from which a warranty might arise.

tom

 

[John B. Matthews]

True, but there are limits. Lawyers aren't wizards, and despite the
popular impression that it's simply the party with the biggest,
strongest lawyers that wins, as they were some kind of pokemon with
sharp suits, if the law says so, it's so.

I share your desire for civil law to be as predictable as, say, natural
law. Sadly, tort litigation is a form of siege: the court may limit the
use of aerial bombardment or biological weapons, but eventually one side
runs out of food or ammunition.

From the UCC:

2-106. (1) In this Article unless the context otherwise requires
"contract" and "agreement" are limited to those relating to the
present or future sale of goods. "Contract for sale" includes
both a present sale of goods and a contract to sell goods at a
future time. A "sale" consists in the passing of title from the
seller to the buyer for a price (Section 2-401).

The title here is to the license to use the software. Where's the
price?

Something i failed to mention in my previous post is that all this is
based on English common law, so it only applies to jurisidictions
which have inherited that, which means the UK, the USA, and i assume
Canada, Australia, etc. Civil law jurisdictions mostly don't, AIUI,
have the concept of consideration, so it's possible that there,
giving someone a gift (which is essentially what is happening here)
creates a contract, from which a warranty might arise.

I think you are correct. Free software that is sufficiently defective,
or even malicious, might be construed as an onerous gift:

"An onerous gift, when the burden it imposes is the payment of a sum of
money, is, when accepted, in the nature of a sale."

<http://legal-dictionary.thefreedictionary.com/sale>