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> If this happens, it will be the end of open source and the indie web If I run over someone when driving a car, I'm responsible - not the car maker. If my cus

> If this happens, it will be the end of open source and the indie web If I run over someone when driving a car, I'm responsible - not the car maker. If my customer's data is stolen, I'm responsible. Whether the makers of my software are responsible is a contractual matter - and nearly all open source licenses include a disclaimer of warranty and a limitation of liability, including the GPLv3 (see sections 15–17).

kragen 5y ago
> Whether the makers of my software are responsible is a contractual matter - and nearly all open source licenses include a disclaimer of warranty and a limitation of liability, including the GPLv3 (see sections 15–17). That was true in the US until MacPherson v. Buick in 01916 and in the UK until Donoghue v. Stevenson in 01932. Nearly all proprietary software licenses include the same disclaimer, but they are on slightly firmer ground in doing so, since typically those licenses are in fact contracts under common law, while the GPL explicitly purports not to be a contract and is very likely correct about that. The kind of statutory imposition of liability we're discussing here would have to specifically outlaw such contract terms in order to work at all. You could imagine a statute that would specifically exempt open-source software licenses from that, but as explained comprehensively in this thread, such a statute would certainly not be the one that was passed.
- justincormack 5y ago
  Surely though without a contract there is no liability? IANAL but imposing liability on gifts seems difficult.
  - kragen 5y ago
    Without a contract there was no liability in the US until MacPherson v. Buick in 01916 and in the UK until Donoghue v. Stevenson in 01932, as I just explained in the comment you are replying to.
  - danarmak 5y ago
    If I build an unsafe boiler, and gift it to you, and then it explodes and kills you - am I not liable because it was a gift and not a sale? Can I disclaim away any liability and "fitness for purpose" when I gift you the boiler? ETA: the first couple of Google results say that no, product liability can't be disclaimed away - particularly when there is no contract or opportunity for bargaining. I am very much not a lawyer but this sounds correct to me (i.e. this is what the law is). https://www.findlaw.com/injury/product-liability/are-product-liability-disclaimers-effective.html https://www.findlaw.com/injury/product-liability/are-product... https://www.eltonlaw.com/does-a-disclaimer-mean-you-cannot-file-a-product-liability-lawsuit/ https://www.eltonlaw.com/does-a-disclaimer-mean-you-cannot-f...
    - aj3 5y ago
      Your second link mentions sellers avoiding liability by selling product (that can be inspected in stores) "as-is". It could be argued that open source falls in the same category. You have an opportunity to inspect it before using and if you don't like it or don't feel qualified to pass judgement, no one is forcing you to use it.
      - danarmak 5y ago
        The second link doesn't mention "as-is", the first one does. I'll assume that's what you meant. It says, > Though manufacturers cannot so easily escape liability, sellers can escape liability by informing the customer before the purchase that a product must be taken "as-is,” which means how the product was found when it was purchased in-store. “As-is” works because the buyer has an opportunity to inspect the product and decide whether to buy it given its condition. On that analogy, Github and RedHat aren't liable, but the original author of the software still is.

kragen 5y ago

> Whether the makers of my software are responsible is a contractual matter - and nearly all open source licenses include a disclaimer of warranty and a limitation of liability, including the GPLv3 (see sections 15–17). That was true in the US until MacPherson v. Buick in 01916 and in the UK until Donoghue v. Stevenson in 01932. Nearly all proprietary software licenses include the same disclaimer, but they are on slightly firmer ground in doing so, since typically those licenses are in fact contracts under common law, while the GPL explicitly purports not to be a contract and is very likely correct about that. The kind of statutory imposition of liability we're discussing here would have to specifically outlaw such contract terms in order to work at all. You could imagine a statute that would specifically exempt open-source software licenses from that, but as explained comprehensively in this thread, such a statute would certainly not be the one that was passed.

justincormack 5y ago
Surely though without a contract there is no liability? IANAL but imposing liability on gifts seems difficult.
- kragen 5y ago
  Without a contract there was no liability in the US until MacPherson v. Buick in 01916 and in the UK until Donoghue v. Stevenson in 01932, as I just explained in the comment you are replying to.
- danarmak 5y ago
  If I build an unsafe boiler, and gift it to you, and then it explodes and kills you - am I not liable because it was a gift and not a sale? Can I disclaim away any liability and "fitness for purpose" when I gift you the boiler? ETA: the first couple of Google results say that no, product liability can't be disclaimed away - particularly when there is no contract or opportunity for bargaining. I am very much not a lawyer but this sounds correct to me (i.e. this is what the law is). https://www.findlaw.com/injury/product-liability/are-product-liability-disclaimers-effective.html https://www.findlaw.com/injury/product-liability/are-product... https://www.eltonlaw.com/does-a-disclaimer-mean-you-cannot-file-a-product-liability-lawsuit/ https://www.eltonlaw.com/does-a-disclaimer-mean-you-cannot-f...
  - aj3 5y ago
    Your second link mentions sellers avoiding liability by selling product (that can be inspected in stores) "as-is". It could be argued that open source falls in the same category. You have an opportunity to inspect it before using and if you don't like it or don't feel qualified to pass judgement, no one is forcing you to use it.
    - danarmak 5y ago
      The second link doesn't mention "as-is", the first one does. I'll assume that's what you meant. It says, > Though manufacturers cannot so easily escape liability, sellers can escape liability by informing the customer before the purchase that a product must be taken "as-is,” which means how the product was found when it was purchased in-store. “As-is” works because the buyer has an opportunity to inspect the product and decide whether to buy it given its condition. On that analogy, Github and RedHat aren't liable, but the original author of the software still is.