Changeset - 26def8538a10
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Bradley Kuhn (bkuhn) - 9 years ago 2015-03-17 00:53:40
bkuhn@ebb.org
FIXME note about restoring UCITA reference.
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@@ -2398,48 +2398,54 @@ copyright licenses.
 
Most warranty disclaimer language shouts at you.  The
 
\href{http://www.law.cornell.edu/ucc/2/2-316}{Uniform Commercial
 
  Code~\S2-316}, which most of the USA's states and commonwealths have adopted as their local
 
law, allows disclaimers of warranty, provided that the disclaimer is ``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
 
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{One of the authors of this tutorial, Bradley M.~Kuhn, has
 
  often suggested the aesthetically preferable compromise of a
 
  \textsc{specifically designed ``small caps'' font, such as this one, as an
 
    alternative to} WRITING IN ALL CAPS IN THE DEFAULT FONT (LIKE THIS),
 
  since the latter adds more ugliness than conspicuousness.  Kuhn once
 
  engaged in reversion war with a lawyer who disagreed, but that lawyer never
 
  answered Kuhn's requests for case law that argues THIS IS INHERENTLY MORE
 
  CONSPICUOUS \textsc{Than this is}.}
 

	
 
% FIXME: Should UCITA be mentioned anywhere in here?  It was previously
 
% mentioned elsewhere in the tutorial but it was out of context and not
 
% useful.  If it should be mentioned anywhere, here is probably the spot, but
 
% it's not clear we should mention it at all, since it's specific just to two
 
% state/commonwealths in the USA: MD and VA.
 

	
 
Critics have occasionally questioned GPL's enforceability in some jurisdictions because its
 
disclaimer of warranties is impermissibly broad.  However,
 
critics
 
have generally failed to articulate specific precedents in their
 
jurisdictions that would directly indicate a problem with GPL's warranty
 
disclaimer.  Meanwhile,
 
\href{http://www.cisg.law.pace.edu/cisg/text/treaty.html#35}{Article 35 of
 
  the United Nations Convention on Contracts for the International Sale of
 
  Goods} (often abbreviated ``CISG'', which
 
\href{https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=228&chapter=10&lang=en}{many
 
  countries have adopted}) permits the disclaimer of warranties, so
 
jurisdictions adopting this treaty allow some form of warranty
 
disclaimer\footnote{Scholars continue to debate to what extent CISG applies to software
 
  licenses.  For example, Diedrich concluded that ``CISG is prima facie
 
  applicable to international transactions involving the transfer of computer
 
  software for a price'', but Sono disagrees with this ``prevailing view'',
 
  presenting an ``analysis [that] restricts the applicability of the CISG to
 
  software transactions by excluding `license contracts'''.  (See
 
  \href{http://www.cisg.law.pace.edu/cisg/biblio/diedrich1.html}{Frank
 
    Diedrich, \textit{The CISG and Computer Software Revisited}}, 6 Vindobona
 
  Journal of International Commercial Law and Arbitration, Supplement 55--75
 
  (2002), and
 
\href{http://www.cisg.law.pace.edu/cisg/biblio/sono6.html}{Hiroo Sono,
 
  \textit{The Applicability and Non-Applicability of the CISG to Software
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