Disclaimer

[Matthew East]

Hi Amanda,

On Thu, Nov 27, 2008 at 3:55 PM, Amanda Brock
<amanda.brock at canonical.com> wrote:
> Hi there
>
> Wording is there for legal purposes and should remain.  Warranty refers
> to the applicable statutory warrantie etc s.  Please do not remove.

Pleased to make your acquaintance - I'm also a lawyer in London
although my involvement in Ubuntu is purely voluntary.

I'm posting again on this subject because I'm genuinely interested in
the way in which Ubuntu treats its legal relationships with users and
distributors. I haven't researched it at all and am just posting my
personal thoughts.

In the jurisdiction where I work (England & Wales), warranties are
only implied by statutes where there is a contract. I can't think of
any way that a contract could form between a user on the one hand, and
Ubuntu (which doesn't exist as a legal entity), Canonical or the
Ubuntu Foundation on the other hand. This is because a user isn't
giving any consideration in return for the product (because it is
free).

If that's right, then the exclusion of warranties is not genuinely necessary.

Do you disagree with that analysis? I can't say of course whether
other jurisdictions are similar or not, although Wikipedia seems to
indicate that the US might be -
http://en.wikipedia.org/wiki/Consideration_under_American_law

I think there is a general misunderstanding about the nature of the
legal relationships that Ubuntu's use entails. For example, on
http://www.ubuntu.com/legal it states that the use of Ubuntu is
governed by the licence agreements. That's not true either - those
licences exist to facilitate *redistribution* of the software (as
opposed to use), and to define the conditions for that. In the absence
of those licences, the software would not be redistributable because
copyright would apply in its full force.

The main point here of course, which Dustin made already, is that even
if the above is wrong, then the "MOTD" is a poor way of seeking to
impose such an exclusion, because only a fraction of users see it
(those running the desktop edition don't ever see it). If there is a
genuine concern about trying to communicate legal issues (whether it
is warranty or other exclusions, licences or anything else) to users,
it needs to be done before they click the "download" button on the
website and the "install" button after running the CD.

Looking forward to your thoughts.

-- 
Matthew East
http://www.mdke.org
gnupg pub 1024D/0E6B06FF