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Bradley Kuhn (bkuhn) - 10 years ago 2014-03-20 12:22:29
bkuhn@ebb.org
Wordsmith the footnote from previous commit.
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gpl-lgpl.tex
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@@ -2136,56 +2136,55 @@ versions of GPL.)
 

	
 
GPLv2~\S10 reminds the licensee of what is already implied by the nature of
 
copyright law.  Namely, the copyright holder of a particular software
 
program has the prerogative to grant alternative agreements under separate
 
copyright licenses.
 

	
 
\section{GPLv2~\S11: No Warranty}
 
\label{GPLv2s11}
 

	
 
Most warranty disclaimer language shout at you.  The
 
\href{http://www.law.cornell.edu/ucc/2/2-316}{Uniform Commercial
 
  Code~\S2-316} requires that disclaimers of warranty be ``conspicuous''.
 
There is apparently general acceptance that \textsc{all caps} is the
 
preferred way to make something conspicuous, and that has over decades worked
 
its way into the voodoo tradition of warranty disclaimer writing.
 

	
 
That said, there is admittedly some authority under USA law suggesting that
 
effective warranty disclaimers that conspicuousness can be established by
 
capitalization and is absent when a disclaimer has the same typeface as the
 
terms surrounding it (see \textit{Stevenson v.~TRW, Inc.}, 987 F.2d 288, 296
 
(5th Cir.~1993)).  While GPLv3's drafters doubted that such authority would
 
apply to copyright licenses like the GPL, the FSF has nevertheless left
 
warranty and related disclaimers in \textsc{all caps} throughout all versions
 
of GPL\@\footnote{\textsc{One of the authors of this tutorial, Bradley
 
    M.~Kuhn, has often suggested that as compromise, use of a specifically
 
    designed ``small caps'' font, such as the one used herein, is
 
    aesthetically preferable to merely} WRITING IN ALL CAPS IN THE DEFAULT
 
  FONT (LIKE THIS), WHICH SEEMS TO ADD UGLINESS RATHER THAN
 
  CONSPICUOUSNESS\@.  Indeed, Kuhn once got into a reversion war in a
 
  document with a lawyer who disagreed with this, but the lawyer in question
 
  ignored Kuhn's requests to produce any case law that argued THIS IS MORE
 
  CONSPICUOUS \textit{Than this is}.}.
 
    M.~Kuhn, has often suggested the aesthetically preferable compromise of a
 
    specifically designed ``small caps'' font, such as this one, as an
 
    alternative to} WRITING IN ALL CAPS IN THE DEFAULT FONT (LIKE THIS)\@.
 
  The latter seems to add more ugliness than conspicuousness.  Kuhn once
 
  engaged in reversion war with a lawyer who disagreed, but that lawyer has
 
  still yet to answer Kuhn's requests to produce any case law that argues
 
  THIS IS INHERENTLY MORE CONSPICUOUS \textsc{Than this is}.}.
 

	
 
Some have argued the GPL is unenforceable in some jurisdictions because
 
its disclaimer of warranties is impermissibly broad.  However, GPLv2~\S11
 
contains a jurisdictional savings provision, which states that it is to be
 
interpreted only as broadly as allowed by applicable law.  Such a
 
provision ensures that both it, and the entire GPL, is enforceable in any
 
jurisdiction, regardless of any particular law regarding the
 
permissibility of certain warranty disclaimers.
 

	
 
Finally, one important point to remember when reading GPLv2~\S11 is that GPLv2~\S1
 
permits the sale of warranty as an additional service, which GPLv2~\S11 affirms.
 

	
 
\section{GPLv2~\S12: Limitation of Liability}
 
\label{GPLv2s12}
 

	
 
There are many types of warranties, and in some jurisdictions some of them
 
cannot be disclaimed.  Therefore, usually agreements will have both a
 
warranty disclaimer and a limitation of liability, as we have in GPLv2~\S12.
 
GPLv2~\S11 thus gets rid of all implied warranties that can legally be
 
disavowed. GPLv2~\S12, in turn, limits the liability of the actor for any
 
warranties that cannot legally be disclaimed in a particular jurisdiction.
 

	
 
Again, some have argued the GPL is unenforceable in some jurisdictions
 
because its limitation of liability is impermissibly broad. However, \S
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