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Comment by kevincox | Hacker News Reader

> The details are probably up for courts to decide

As someone with lots of software publicly available with permissive licenses I absolutely do not want to participate in letting the "courts decide". If this was going through I would be strongly considering adding a banner saying that this software is not for EU consumers with the alternative being denying the fact that I am aware that EU people were using the software.

I am happy to provide my software as-is with no warranty. But if there is a chance that I am somehow on the hook for any guarantees about that software I'm out. It is just too much risk for very little gain.

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Are you selling that software in the EU or are you merely making it available? Because there an exception for free and open source software and the EU can't regulate the business you do outside of the EU.

If you're selling support licenses to the EU for your open source software then you're on the hook for patching them, but you'd probably already be for other reasons.

In my case I am not selling, only making it available. If selling I am happy to consider their needs and my legal obligations (for the right price). But as the grandparent states we are talking about just making free software available:

> it hinges on whether offering open source software on GitHub is considered a product in the sense of the law.

From the context of the rest of the law it seems pretty obvious to me that just making your code available doesn't turn it into a product. I don't know why people assume it does.

I assume Github and friends are much more concerned with being on the hook for selling these products (i.e. through Copilot). Github does sell you software that happens to make open source code available, and that seems like a much more vague situation.

> Are you selling that software in the EU or are you merely making it available?

What difference does it make... If small developers and software businesses risk thousands of euros of fines, decided arbitrarily by the courts based on civil minimum and maximum limits, open source and small software in the Eu will die and the only ones to benefit from this will be the larger software companies that can afford the fines - who will be scooping up all the users of these open source projects and small developers - like the German software businesses who back the current German government and the German contingent in Euparl.

Note how the draft is designed to exclude the software that these major software companies are mooching off of - like Linux. Its basically exclude what you benefit from, kill who eat into your profit margins and be happy - total American corporate style legislation...

> I would be strongly considering adding a banner saying that this software is not for EU consumers

This should be incorporated in the license.

The alternative would be a (paid) support contract for EU customers.

A paid support contract would put you outside of the exception for open source software. That's probably the exact opposite of what you want.

If you're just making your code available for no charge and not selling the product, the obligations don't even apply under the current proposal.

> If you're just making your code available for no charge and not selling the product, the obligations don't even apply under the current proposal.

Sadly, we'll have to wait for the courts to settle the first cases.

> The alternative would be a (paid) support contract for EU customers.

I imagine such a contract would be fabulously expensive. Typically, FLOSS software with support contracts is for relatively complex software; the organisation offering support is often not the organisation that develops it.

If offering support on FLOSS software exposes you to legal liability, then you need insurance, and insurers aren't going to have the expertise to price the risk. So premiums will be top-dollar.

I think the (misguided) intention is to strongly favour commercial software production over one-man-and-his-dog FLOSS developers.

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