Re: New Arcadia/IRUS AFLEX-AYACC release

Re: New Arcadia/IRUS AFLEX-AYACC release

[agate!spool.mu.edu!wupost!zaphod.mps.ohio-state.edu!cis.ohio-state.edu!ne]

In article <9301061627.aa17219@Paris.ics.uci.edu> irus-software-request@ics.uci
.edu writes:

> THIS SOFTWARE IS PROVIDED ``AS IS'' AND WITHOUT ANY EXPRESS OR
> IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
> WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Since this message seems to have been posted with no geographical
restriction, perhaps a warning is in order.

As of 1993 January 1, all products distribuited within the European
Community carry an implied warranty of merchantability, including
all computer related products, and this warranty cannot be disclaimed.

In most countries of the EC, in fact, it is illegal to attempt to
disclaim this implied warranty; in the United Kingdom (at least),
it is a *criminal offence* to do so.

About time too, if you want my opinion.

Re: New Arcadia/IRUS AFLEX-AYACC release

[MILLS,JOHN M.]

In article <1993Jan7.075406.6948@sei.cmu.edu> firth@sei.cmu.edu (Robert Firth) 
writes:
>In article <9301061627.aa17219@Paris.ics.uci.edu> irus-software-request@ics.uc
i.edu writes:
>
>> THIS SOFTWARE IS PROVIDED ``AS IS'' AND WITHOUT ANY EXPRESS OR
>> IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
>> WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.

[ deletions ]
 >
 >As of 1993 January 1, all products distribuited within the European
 >Community carry an implied warranty of merchantability, including
 >all computer related products, and this warranty cannot be disclaimed.
 >
 >In most countries of the EC, in fact, it is illegal to attempt to
 >disclaim this implied warranty; in the United Kingdom (at least),
 >it is a *criminal offence* to do so.

This sounds like a serious problem with regard to freely shared software.
The cited distribution is such a case:  ftp and try it out.  no charge,
and no way the offerror could afford to assume liability for misuse.

I think it _essential_ that a mechanism exist to allow such distribution.
Possibly this can be addressed by distributing such materials as 'examples
and illustrations only.'  Alternatively, EC distribution of archive files could
 
be made technically illegal ... I don't know.  Sounds like
a good (? [8-P) moment for lawyerly prose.  I'm _not_ a lawyer, but I 
imagine there is a way to handle this.  How about copyright?

 >About time too, if you want my opinion.

I must disagree, for the reasons stated above.  Casual re-use of copied
materials should be at the risk of the user, since the distributor has
no control over the re-use.

Otherwise, the EC has just shot off their foot, leg, and most of
their lower torso, with regard to network access.  Probably will hurt
the rest of us, too, by the cascading effects of caution, and engender
_lots_ more lawyerly prose. <sigh>

"Send me your tired, your gcc, your huddled GNAT Adas, longing to be free..."

I'm glad you raised the issue.

Regards --jmm--

-- 
John M. Mills, SRE; Georgia Tech/GTRI/TSDL, Atlanta, GA 30332
uucp: ...!{decvax,hplabs,ncar,purdue,rutgers}!gatech!prism!jm59
Internet: jm59@prism.gatech.edu
 ... Not so fast -- I'm still thinking.

Re: New Arcadia/IRUS AFLEX-AYACC release

[Robert I. Eachus]

     Two maybe three legal issues here.  (I'm not a lawyer and I don't
play one on TV...  And in any case my knowledge of the law of
merchantability, such as it is, was right at one time in ONE of the
United States.)  First does any warrant of merchantability reside
in any free software product?  Probably not.  (A warrent of
merchantability is that the product is usable for the purpose for
which it is SOLD.)  What if someone charges for disks/tapes of such
software?  The implicit warranty is that the software on the disk is
what it was sold as. (i.e. If I sell you a copy of a piece of free
software written by someone else, the only warranty that I see is that
it is a proper copy of the right software.  But, if I adverise it as
the greatest C compiler since sliced bread, not gcc 3.2.2 then I am
sticking my neck out.--Again, I am not a lawyer.)  What about a
company or organization that sells copies of its own free software?
As long as the price charged is identified as a copying/media fee, the
organization is probably safe.

     Finally what about denials (not limitations) of implicit warrants
of merchantability in disclaimers?  If they were put in by a lawyer,
get a better lawyer, if they weren't written by a lawyer, delete them!
The wording in the alex/ayacc warranty reprinted below, far exceeds
the limits as I learned them, but may be okay for free software since
it says provided not sold. (Such a document could be taken as prima
facie evidence of lack of good faith in many juristictions, thereby
bringing the implied warranty into full force.  Again, I am not...)
The format I learned was:

     This product is sold as a fabbitz for frozbizzing {or
whatever}..., and is warranted free from known defects {except...}.
The manufacturer warrents that this product, if used in accordance
with...will {do what we say it will} and if not the manufacturer
agrees to refund or replace...for a period of...  This warranty takes
precedence over all other warranties express or implied.

     In other words, by providing an explicit warranty of
merchantability, it is possible to supercede (and limit) the implied
warranty.  As long as such a warranty is made in good faith, it will
hold up.  (But don't hide known bugs, and don't deny claims made in
advertisements.)

The Acadia non-warranty:

> THIS SOFTWARE IS PROVIDED ``AS IS'' AND WITHOUT ANY EXPRESS OR
> IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
> WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.


--

					Robert I. Eachus

with Standard_Disclaimer;
use  Standard_Disclaimer;
function Message (Text: in Clever_Ideas) return Better_Ideas is...

Re: New Arcadia/IRUS AFLEX-AYACC release

[agate!usenet.ins.cwru.edu!magnus.acs.ohio-state.edu!cis.ohio-state.edu!ne]

In article <EACHUS.93Jan7193852@goldfinger.mitre.org> eachus@goldfinger.mitre.o
rg (Robert I. Eachus) writes:

>  First does any warrant of merchantability reside
>in any free software product?  Probably not.

In the UK, very probably, yes.  This was made explicit in the old
original Sale of Goods act in 1880.  Blackstone's summary reads:

	"In a sale or by sample, there is an implied
	 warranty of merchantableness" [UK Law Times, 1885]

This was further reinforced by a case in the 1930s whose details
I forget but you can look it up.  The distributor was a pharmaceutical
company that gave free sample of its products to doctors as a means
of advertising them.  When one of them killed a patient, the company
argued just that - there was no implied warranty because no sale.
They lost.  The issue is not whether you charge for the product, but
the fact that you distribute it.

Robert

Re: New Arcadia/IRUS AFLEX-AYACC release

[Robert I. Eachus]

    Again I am not a lawyer, and certainly not an English barrister,
but there is a major difference between free samples and a product
that is not intended for sale.  If you go beyond merchandise, just
where do you stop?  Or to put it another way, is the disclaimer at the
bottom of my postings in violation of EC law?

    P. S. In the states the same sort of thing applies, but usually
the treatment is that the implied warrant of merchantability resides
in merchandise OFFERED for sale, whether or not actually sold.  Thus
it covers such things as consignment goods, test periods, etc.

--

					Robert I. Eachus

with Standard_Disclaimer;
use  Standard_Disclaimer;
function Message (Text: in Clever_Ideas) return Better_Ideas is...

Re: New Arcadia/IRUS AFLEX-AYACC release

[Don Tyzuk]

firth@sei.cmu.edu (Robert Firth) writes:

>I forget but you can look it up.  The distributor was a pharmaceutical
>company that gave free sample of its products to doctors as a means
>of advertising them.  When one of them killed a patient, the company
>argued just that - there was no implied warranty because no sale.
>They lost.  The issue is not whether you charge for the product, but
>the fact that you distribute it.

I also do not play a lawyer on t.v.,  but I pretend I am one
in arguments that don't belong here anymore... :-)
But, that won't stop ME from adding to it!

The pharmaceutical company is in the business  of selling the
product.  There is a business relationship there, even if the
company gives away the sample.

The distribution of GNU (and similar work) is the publication
of an academic work.  If I write a paper on how to achieve
cold fusion in a snowbank, and you try it and it doesn't work:
then you are simply reading my shoddy research and trying to
replicate the results.

I would say that distribution of this software is simply
publication of academic work.
-- 
don.tyzuk@acadiau.ca