Subject: RE: a proposed change to the OSD
From: "Lawrence E. Rosen" <>
Date: Sat, 2 Nov 2002 22:20:38 -0800

Bruce Dodson wrote:
> Forget about privity for a second.  That's a red herring.  My 
> cat just strolled in, so now I have other things on my mind:  
> Someone gave this cat to me; she was "free to a good home".  
> They said she was healthy, and it turned out they were right. 
>  If I found that she had some health problem when I got her, 
> could I have expected the original owners to pay the 
> veterinary expenses based on some theory of implied warranty? 
>  If I had decided to return her, could I have expected to be 
> compensated some amount so I could buy a replacement cat from 
> Pets R Us?
> "Don't be stupid, Bruce, of course not," says my conscience.

> Does the law disagree?  Also, does it give a different answer 
> for software than for cats?

I'm not sure about the cat situation.  I've not read any cases about the
law of contracts as it applies to pets accepted by "good homes."  Hardly
anyone goes to court about their cats.  (Check your local bar
association for cat lawyers.)  But software is ubiquitous and it is big
business.  Where money is at risk, courts and judges and lawyers and
legislators and lobbyists are involved.  So there are cases that deal
with software.  Those cases make it clear (at least to me) that we ought
to use enforceable contracts when we license our software.  Someday,
everyone will adopt cats and use only free software.  Perhaps by then
the law will address both kinds of "products" in a similar fashion, and
the phrase "free to good homes" will have broader meaning to open source


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