diff --git a/gpl-lgpl.tex b/gpl-lgpl.tex index 6382e7ee0b7f6aba05e0d12c576c4e4c7c23faff..ced4233ebaa5144f55f4fbd93fab70c48c905bd8 100644 --- a/gpl-lgpl.tex +++ b/gpl-lgpl.tex @@ -2398,7 +2398,7 @@ 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, requires that disclaimers of warranty be ``conspicuous''. +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. @@ -2419,13 +2419,41 @@ of GPL\@.\footnote{One of the authors of this tutorial, Bradley M.~Kuhn, has answered Kuhn's requests for 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. +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 ``CIGS'', 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 + Transactions}}, Camilla B. Andersen \& Ulrich G. Schroeter eds., Sharing +International Commercial Law across National Boundaries: Festschrift for +Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds +\& Hill Publishing (2008) 512--526.)}. +Nevertheless, to account for possible jurisdictional variances regarding this +or any other issue, 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.