licensing jurisdiction
Can Australians Accept The Ritchey Permissive License?
<p>According to <a href="https://law.stackexchange.com/a/1412">this post</a>, in Australia you cannot disclaim all warranties. The Ritchey Permissive License does (<a href="https://jamesdanielmarrsritchey.blogspot.com/2019/12/ritchey-permissive-license-v7.html" rel="nofollow noreferrer">"The material is provided without warranties of any kind"</a>), but it also states <a href="https://jamesdanielmarrsritchey.blogspot.com/2019/12/ritchey-permissive-license-v7.html" rel="nofollow noreferrer">"You must be legally capable of being bound to all the requirements of this license"</a>. Would this prevent Australian's from accepting the license, or would portions of the license simply not be upheld in that jurisdiction? </p>

<h2>Probably</h2>

<p>First of all, a <a href="https://www.accc.gov.au/business/treating-customers-fairly/offering-warranties/warranties-against-defects" rel="nofollow noreferrer">warranty</a> is different from a <a href="https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees" rel="nofollow noreferrer">guarantee</a> under Australian Consumer Law (<a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/caca2010265/toc-sch2.html" rel="nofollow noreferrer">ACL</a>). The license purports to exclude the former but not the latter. So, on a literal reading, the license doesn't offend the ACL and is probably fine on that basis alone although this may not be what the licensor intended.</p>

<p>Notwithstanding, even if "warranty" and "guarantee" are to be read interchangeably it is not clear that this would offend the ACL. Since this is a supply of <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s95a.html#services" rel="nofollow noreferrer">services</a> (not goods) there are only three guarantees in the ACL: Guarantee as to due care and skill (60), Guarantees as to fitness for a particular purpose etc. (61) and Guarantee as to reasonable time for supply (62).</p>

<p>It should be obvious, given the nature of the website, that 61 and 62 are not going to be applicable. So, this leaves only 60:</p>

<blockquote>
  <p>If a person supplies, <em>in trade or commerce</em>, services to a <em>consumer</em>, there is a guarantee that the services will be rendered with due care and skill.</p>
</blockquote>

<p>Before this ACL guarantee is engaged there needs to be a <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s51aca.html#consumer" rel="nofollow noreferrer">consumer</a> (which there is) and the supply must be "in trade or commerce". Trade or commerce is not defined in ACL except circularly in terms of geography:</p>

<blockquote>
  <p>"trade or commerce" means trade or commerce within Australia or between Australia and places outside Australia.</p>
</blockquote>

<p>This is a deliberate choice by the legislature because s51(i) of the Constitution grants the Commonwealth legislative power "with respect to trade or commerce" and clearly legislation cannot define a term that is used in the Constitution (without definition) but it can narrow its definition for the purposes of the Act.</p>

<p>"Trade or commerce" is interpreted by the courts based on the totality of the circumstances. A supplier is "in trade or commerce" if they are routinely or regularly engaged in 'business' (for-profit or not-for-profit) and the particular supply forms part of that business. However, supplies that are 'personal' rather than 'business' in nature are not captured. Similarly, activities by a 'business' that are not "in trade or commerce" such as lobbying (unless their business is as a lobbyist) are excluded.</p>

<p>Note that the Act refers to "supply" - this includes supplies that are neither contracts and/or for which the consumer provides no consideration. For example, a supermarket giving free samples of a foodstuff is a "supply" "in trade or commerce" and is captured by the ACL.</p>

<p>With respect to this particular site, it appears to be a private blog and therefore the supply is not "in trade or commerce" so the ACL guarantees are not engaged.</p>

<p>Now, if you wanted to take something under this license, which requires you to use this license when you 'onsell' and you were doing so in the context of a "supply" "in trade or commerce" to a "consumer", you wouldn't be able to.</p>

<p>Basically it depends on whether there is a contract and whether the licensor is a business (vs private individual).</p>

<p>For Australian consumer law to apply, the "material" must be supplied "<strong>in trade or commerce</strong>".</p>

<p>That is, if you are supplied with the "material" outside of a trade or commerce (simply put, outside of a contract, but see DaleM's comment), Australian consumer law does not apply and so does not prevent you from accepting the license.</p>

<p>If there is a contract, whatever parts of the license are consistent with Australian law will be terms of the contract. The rest of the license will simply not apply.</p>
