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Re: [libreplanet-discuss] GNU GPL vs Consumer Guarantees Act


From: Adam Van Ymeren
Subject: Re: [libreplanet-discuss] GNU GPL vs Consumer Guarantees Act
Date: Thu, 15 Sep 2016 09:37:47 -0400

On Thu, Sep 15, 2016 at 6:06 AM, Thadeu Lima de Souza Cascardo
<address@hidden> wrote:
> On Thu, Sep 15, 2016 at 08:24:36PM +1200, Kesara Rathnayake wrote:
>> Hi Cascardo,
>>
>> Thanks for the reply.
>> Your explanation makes sense.
>> I think I have to looked into see how NZ Consumer Guarantees act applies
>> to goods and services distributed for free.
>>
>
> See Part 5, Section 41 "Exceptions".
>
> "
> (1) Nothing in this Act shall apply in any case where goods or services are
> supplied otherwise than in trade.
>
> (2) Nothing in this Act shall give any person a right of redress against
> a charitable organisation in any case where goods or services are
> supplied by the charitable organisation for the principal purpose of
> benefiting the person to whom the supply is made.
> "
>
> I am not a lawyer, this is not legal advice.
>
> I guess item 1 would apply here.

I wouldn't expect it to apply in cases where someone sold GPL software
though.  If it was freely downloadable that's one thing, but if you
sold it then I would expect the New Zealand consumer guarantee act to
apply.

>
> Cascardo.
>
>> Cheers,
>> Kesara
>> On Mon, Sep 12, 2016 at 08:12:12PM -0300, Thadeu Lima de Souza Cascardo 
>> wrote:
>> > On Mon, Sep 12, 2016 at 10:12:31PM +1200, Kesara Rathnayake wrote:
>> > > -----BEGIN PGP SIGNED MESSAGE-----
>> > > Hash: SHA512
>> > >
>> > > Hi all,
>> > >
>> > > In one of the talks [1] on 2016 Kiwi PyCon (New Zealand's annual Python 
>> > > conference) [2], the presenter mentioned that GNU GPL's "Disclaimer of 
>> > > Warranty" is invalid against New Zealand consumer guarantee act [3] 
>> > > which offers warranty against any goods or services consumed by 
>> > > consumers.
>> > >
>> > > Does that mean if someone sells a GNU GPL software, is there a chance 
>> > > that license could be invalid?
>> > >
>> > > Can the “Consumer Guarantees acts" like these affect the original 
>> > > authors, even though they didn't sell the software?
>> > >
>> > > Cheers,
>> > > Kesara
>> > >
>> >
>> > That's a very good question. Too bad it has been posed as truth, or so
>> > you seem to have understood the speaker's statement.
>> >
>> > Usual disclaimers: I am not a lawyer, this is not legal advice.
>> > Further disclaimers: I haven't read the referred act, and don't know NZ
>> > law.
>> >
>> > Nonetheless, the comments below are generic and may as well apply here.
>> > And if they don't, I think it's important to try to clarify such kind of
>> > doubts.
>> >
>> > Now, I just watched the segment, and I guess Tim just meant that it is
>> > important to know law in general, and how copyright works, but
>> > unfortunately made the comment about guarantees, and misread the GPL
>> > that you may not offer any warranty as in "absolutely no warranty".
>> >
>> > Let's shake this GPL thing off first. GPLv2 section 1 says:
>> >
>> > "You may charge a fee for the physical act of transferring a copy, and
>> > you may at your option offer warranty protection in exchange for a fee."
>> >
>> > That is to say that any one who distributes verbatim copies of the
>> > software may offer warranty. If the law requires you to do so, the GPL
>> > does not forbid you to.
>> >
>> > Now to your question of whether the license could be invalid, this would
>> > be in detriment of the consumer, as copyright by default is a "CAN'T".
>> > You can't copy the software, you can't modify the software, you can't do
>> > this, you can't do that, in some jurisdictions, one might even interpret
>> > that you can't use the software, not without the copyright holder
>> > permission. The license in the tool that copyright holders use to give
>> > some such permissions. If the license is entirely invalid, then the
>> > consumer could be in violation of copyright law (usually, civil not
>> > criminal offense, but watch out for some jurisdictions and some special
>> > cases).
>> >
>> > Now, if the distribution of the software is done for free, would it be
>> > fair to require any kind of warranty? Well, in case the law requires
>> > such warranties any way, the GPL is nicely crafted to protect the author
>> > as much as possible. Take a snippet of Section 12, for example:
>> >
>> > "IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING
>> > WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR
>> > REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR
>> > DAMAGES, ..."
>> >
>> > Note the "UNLESS REQUIRED BY APPLICABLE LAW". So, if the law doesn't
>> > require it, the license is advising the user that the author should not
>> > be held liable for damages. Now, if the law requires some liability,
>> > then, that should be the most that you would have "UNLESS AGREED TO IN
>> > WRITING", that is to say, some distributor may offer you extra warranty
>> > for a fee.
>> >
>> > So, the warranty sections of the GPL are there to protect the author
>> > from possible liabilities, and it's much more than many other licenses
>> > do.
>> >
>> > Now, if you want more protection than that, you can refrain from
>> > distributing any software at all. In fact, there are many other risks
>> > today for distributing software. There is patent law, and many patent
>> > trolls out there. There are criminal laws against some kind of software
>> > in some jurisdictions (DMCA is one example, another one is recent
>> > Brazilian law against producing or distributing software that allows for
>> > "computer invasion").
>> >
>> > So I guess that was Tim's intention, to say that we should be aware of
>> > laws that affect distribution of software.
>> >
>> > Regards.
>> > Cascardo.
>> >
>> >
>> > > References:
>> > > [1] https://youtu.be/S-Le3PWHqZA?t=696
>> > > [1] https://nzpug.org
>> > > [1] 
>> > > http://www.legislation.govt.nz/act/public/1993/0091/latest/DLM311053.html
>> > > - --
>> > > Sent from my Android device with K-9 Mail.
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>> > > -----END PGP SIGNATURE-----
>> > >
>> > >
>>
>>
>>
>> --
>> Kesara Rathnayake
>>
>> http://kesara.lk | https://fq.nz
>
>
>



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