Questions de responsabilité civile et contractuelle soulevées par la distribution de „logiciels libres“ (open source)

Since the 1980s, the free and open software («FOSS») movement promotes the open exchange of software and of its source code to disrupt the limitations brought upon by the copyrightability of software. The recent emergence of public repositories such as GitHub has however impacted the distribution model of FOSS software – as many of them can now be downloaded and operated freely by their users, including less experienced consumers. This is for instance the case of Openpilot, an open-source driver assistance system freely published on GitHub by the company Comma.ai., which simultaneously sells hardware tablets made specifically to receive the said software. In such situations, one may wonder whether the creator of such a freely available software may be held liable towards its users in case of a malfunction. Through the present contribution, the author will explore this issue – mainly under Swiss civil law, but also under the US and EU regimes. The paper concludes that, though no…