Subject: Express and implied warranties in software licenses
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Wed, 6 Nov 2002 22:59:24 -0800

 Wed, 6 Nov 2002 22:59:24 -0800
Bruce Dodson wrote:
<snip>
> The other two concerns -- about whether I'm on the hook for 
> other warranties besides the one that is offered explicitly 
> (Magnusson Moss).

You are repeating the notion, occasionally mentioned on license-discuss,
that if an open source license offers any warranties at all then the
implied warranties of merchantability and fitness for a particular
purpose cannot be disclaimed.  (See 15 U.S.C. 2308 [no supplier may
disclaim or modify any implied warranty on a consumer product if such
supplier makes any written warranty].)

The Magnusson-Moss act deals with consumer products, meaning "any
tangible personal property which is distributed in commerce and which is
normally used for personal, family, or household purposes (including any
such property intended to be attached to or installed in any real
property without regard to whether it is so attached or installed)." 15
U.S.C. 2301.

That does not include software because it is not tangible personal
property.  Software is intellectual property. 

If you combine software with a consumer product (e.g., a PDA or
telephone), or distribute it on a tangible CD-ROM, arguably the entire
consumer product would be subject to Magnusson-Moss rules.  But the term
"written warranty" in the act is defined as follows: 

   (A) any written affirmation of fact or written promise made
   in connection with the sale of a consumer product by a supplier
   to a buyer which relates to the nature of the material or
   workmanship and affirms or promises that such material or
   workmanship is defect free or will meet a specified level of
   performance over a specified period of time, or
   (B) any undertaking in writing in connection with the sale by
   a supplier of a consumer product to refund, repair, replace, or
   take other remedial action with respect to such product in the
   event that such product fails to meet the specifications set
   forth in the undertaking, 
   which written affirmation, promise, or undertaking becomes part
   of the basis of the bargain between a supplier and a buyer for
   purposes other than resale of such product.  15 U.S.C. 2301.

I don't read the narrow express warranty in the OSL or AFL as meeting
the criteria under either A or B.  

The notion that one runs afoul of Magnusson-Moss if a software license
gives any written warranty whatsoever is not justified in law.

/Larry Rosen

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