If I give away the software but sell support, am I only liable to customers or to everyone? Similarly, if I let people opt in to commercialization of their data, am I liable to those that opt out? Does someone signing a terms of service qualify as commercial activity?
If I fork something and give it away can I sue the person I forked it from? If I tell people "YOU ARE NOT ALLOWED TO USE THIS BUT YOU CAN FORK IT" am I liable if they ignore me? Does a fork qualify as a new product or is the original author liable?
With the aim of not hampering innovation: (i) free and open-source software developed or supplied outside the course of commercial activity[1]
You are only in a commercial activity if you sell that product to that customer or you sold it to a distributor who then sold it to a customer.
E.g. if a customer doesn't buy from you he has no commercial activity with you so no liability.
I would argue that code is code and only becomes a non fungible product in the instance of selling it and only then the laws apply
[1]https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/7393... => page 5 under the light gray box
Edit: fixed italics