WARNING: This document is made public for archival and historical purposes only. Not all of the information is current, and accuracy cannot be guaranteed.
WARNING: This document is made public for archival and historical purposes only. Not all of the information is current, and accuracy cannot be guaranteed.
FSF reserves the exclusive right to publish future versions of the GPL; GPLv2 §9 expresses this. While the stewardship of the copyrights on the body of GPL’d software around the world is shared among thousands of individuals and organizations, the license itself needs a single steward. Forking of the code is often regrettable but basically innocuous. Forking of licensing is disastrous.
(Chapter 2 discusses more about the various versions of GPL.)
GPLv2 §10 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.
Most warranty disclaimer language shouts at you. The Uniform Commercial Code §2-316, 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 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 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 all caps throughout all versions of GPL.1
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, Article 35 of the United Nations Convention on Contracts for the International Sale of Goods (often abbreviated “CISG”, which many countries have adopted) permits the disclaimer of warranties, so jurisdictions adopting this treaty allow some form of warranty disclaimer2. Nevertheless, to account for possible jurisdictional variances regarding this or any other issue, GPLv2 §11 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 §11 is that GPLv2 §1 permits the sale of warranty as an additional service, which GPLv2 §11 affirms.
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 §12. GPLv2 §11 thus gets rid of all implied warranties that can legally be disavowed. GPLv2 §12, 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, §12, just like its sister, GPLv2 §11, contains a jurisdictional savings provision, which states that it is to be interpreted only as broadly as allowed by applicable law. As stated above, such a provision ensures that both GPLv2 §12, and the entire GPL, is enforceable in any jurisdiction, regardless of any particular law regarding the permissibility of limiting liability.
So end the terms and conditions of the GNU General Public License.
1One of the authors of this tutorial, Bradley 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), 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 Than this is.
2Scholars 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 Frank Diedrich, The CISG and Computer Software Revisited, 6 Vindobona Journal of International Commercial Law and Arbitration, Supplement 55–75 (2002), and Hiroo Sono, 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.)