The GPL Meets the UCC: Does Free Software Come with a Warranty of No Infringement of Patents and Copyrights?
33 Pages Posted: 6 Mar 2014
Date Written: March 1, 2014
The GNU General Public License, known as the GPL, is the cornerstone of free software. The GPL has served as the organizing document for free software, providing a structure that has helped transformed the development of software and electronic devices. Software licensed under the GPL may be freely copied and adapted. The source code for the software is made available, to enable anyone to study and change it. The GPL does have "copyleft" restrictions, intended to keep the software free for others. If someone adapts and redistributes GPL’d software, they must likewise allow access to their source code. The GPL states that the code is provided "'AS IS' WITHOUT WARRANTY OF ANY KIND." The clause may not be quite accurate. The licensor makes no warranty of quality that the software will work. But, due to idiosyncrasies of the Uniform Commercial Code, someone who sells software under the GPL may – unknowingly – make a warranty of noninfringement, promising that use of the software does not infringe any patents, copyrights or other third party rights. Someone who sells software under the GPL might be liable for damages, if the buyer were sued by a third party claiming patent or copyright infringement. This paper works through the relevant legal code, assesses the risk to developers, sellers of devices with embedded software and other licensors, and suggests practical ways to reduce the risk.
Keywords: GPL, software, licensing, free software, open source, patent, copyright
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