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GPL v3 : Warranties and Liability. European Open source Lawyers Event Paris Capitale du Libre – 24 September 2008 Sandrine Rambaud Avocat. Introduction. Principle: exclusion of warranties and liabilities Consideration for the chosen model and ensurance of its development Questions raised:

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gpl v3 warranties and liability

GPL v3 : Warranties and Liability

European Open source Lawyers Event

Paris Capitale du Libre – 24 September 2008

Sandrine Rambaud

Avocat

introduction
Introduction
  • Principle: exclusion of warranties and liabilities
  • Consideration for the chosen model and ensurance of its development
  • Questions raised:
    • Is this valid under French law?
    • What are the consequences for the free software users?
legal warranties under french law
Legal warranties under French law
  • Warranty against hidden defects
    • Art.1641 and seq. / Art. 1721 French civil code
    • Art. 211-1 and seq. French consumer code
  • Conformity warranty
    • Art. 1604 French civil code
    • Art. 211-4 French consumer code
  • Infringement warranty
    • Art.1626 and seq. French civil code
    • Art.1719-3 French civil code
hidden defects conformity warranties
Hidden defects / Conformity warranties
  • As a principle, hidden defects warranty may be excluded only between profesionnals of the same speciality.
  • As a principle, conformity warranty may be limited under the same restrictions than the contractual liability
  • In any case, such limitations / exclusions cannot be enforced against consumers.
infringement warranty
Infringement warranty
  • Limitation / exclusions may be valid :
    • Except if the infringement is due to its own behaviour (!)
    • In any case, the reimbursement of the price is due.
limitation exclusion of liability
Limitation/ Exclusion of liability
  • Such limitations / exclusions are valid, except in the following cases:
    • Tort liability
    • Wilfull misconduct
    • Gross negligence
    • Breach of an essential obligation
free software v proprietary software 1
Free software v. Proprietary software (1)
  • Proprietary software licences include several sort of provisions which aim at limiting or excluding software publishers warranties and liability
  • Conformity warranty / Hidden defects warranty
    • Objective of the customer:
      • Correction of the non-conformity / bugs
      • Reimbursement of the licence fee or a reduction of the price
  • Infringement warranties
free software v proprietary software 2
Free software v. Proprietary software (2)
  • No case law in France on these questions
  • The only difference: one contact (the software publisher) or multiple contacts (the community, service providers…)
  • Some risks exist, as in the proprietary software sphere, they are different, but they can be managed.
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