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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. 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

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  1. GPL v3 : Warranties and Liability European Open source Lawyers Event Paris Capitale du Libre – 24 September 2008 Sandrine Rambaud Avocat

  2. 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?

  3. GPLv3: is the exclusion of warranties and liabitliy valid under French law?

  4. 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

  5. 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.

  6. 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.

  7. 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

  8. GPLv3: what are the consequences for the software users ?

  9. 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

  10. 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.

  11. Any questions? Thank You sandrine.rambaud@twobirds.com

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