The GPL Meets the UCC: Does Free Software Come with a Warranty of No Infringement of Patents and Copyrights

Citation: Stephen McJohn (2014/03/01) The GPL Meets the UCC: Does Free Software Come with a Warranty of No Infringement of Patents and Copyrights. Suffolk University Journal of High Technology Law (RSS)
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Summary

Quotes:

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.

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A general warranty disclaimer, such as “As-Is” or “WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED” will not exclude the warranty of title.

GPL's disclaimer of warranty refers to quality of the software, so difficult to interpret as addressing title/noninfringement when copyright and patent are directly addressed elsewhere in the license.

Cannot rely on assertion that GPL is a unilateral bare license rather than an agreement, meaning "that parties will be protected against terms they could otherwise be subject to without notice".

Noninfringement warranty could be excluded by UCC if considered "usage of trade"; this is unclear in the case of the GPL as disclaimer of noninfringement is rarely discussed with regard to free software. Many other free software licenses such as Apache 2.0 explicitly include noninfringement in their warranty disclaimers.

GPL allows adding external warranty disclaimers, so licensors could explicitly disclaim noninfringement warranty, but this would only apply to contributions made by licensors who did this.