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


From: Thadeu Lima de Souza Cascardo
Subject: Re: [libreplanet-discuss] GNU GPL vs Consumer Guarantees Act
Date: Thu, 15 Sep 2016 11:01:37 -0300
User-agent: Mutt/1.6.2-neo (2016-08-21)

On Thu, Sep 15, 2016 at 09:37:47AM -0400, Adam Van Ymeren wrote:
> 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.
> 

That's what I meant by apply "here", in this case, in the case you
referred when services are distributed for free, that is, not as part of
a trade.

As part of a trade, it's not too much different than here in Brazil, and
there is nothing in the GPL preventing you from doing that. The seller
is the one that needs to offer the guarantees, not the original authors.
And the license allows that as I mentioned before.

Cascardo.


> >
> > 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.
> >> > > -----BEGIN PGP SIGNATURE-----
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> >> > > =QCQA
> >> > > -----END PGP SIGNATURE-----
> >> > >
> >> > >
> >>
> >>
> >>
> >> --
> >> Kesara Rathnayake
> >>
> >> http://kesara.lk | https://fq.nz
> >
> >
> >

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