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I am using the MIT License for a particular piece of code. Now, this license has a big disclaimer in all-caps:

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY
OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE WARRANTIES OF...
...

I've seen a normally capitalised disclaimer on the zlib license (notice that it is above the license text), and even software with no disclaimer at all (which implies, i take it, that there is indeed a guarantee?), but i'd like some sourced advice by a trusted party. I just haven't found any.

GNU's License notice for other files comes with this disclaimer:

This file is offered as-is, without any warranty.

Short and simple.

My question therefore: Are there any trusted sources indicating that a short rather than long, and a normally spelled rather than capitalised disclaimer (or even one or the other) are safely usable in all of the jurisdictions I should be concerned with?

For the purposes of this question, the software is released in the European Union, should it make any difference.

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Check with a lawyer, as I'm sure the people who wrote the GPL/BSD did :) – Tim Post♦ Dec 27 '10 at 16:09
@Tim I'm hoping someone else has done that already, and I'm looking for their verdict. Not to be misunderstood: I'm not looking for someone's opinion, but trustworthy evidence. – Stefano Palazzo Dec 27 '10 at 16:14
I got curious enough about the caps to ask. See my answer. – Tim Post♦ Dec 27 '10 at 16:30

2 Answers

up vote 13 down vote accepted

IANAL, but one works with me. So, I asked. The result:

  • The caps allow you to say 'no way could they have missed the disclaimer, it is hardly fine print!' This is important in a license or EULA that non-lawyers must read and accept.

  • There is a difference between 'express' and 'implied'. Some areas have laws that allow people to 'imply' a warranty, even though one was not explicitly offered, unless you make certain specifications.

He suggested not making any changes to existing licenses, as that basically creates a whole new (and likely weaker) license. License proliferation is a problem. Bad license proliferation is a bigger problem.

The license is designed to protect you, and given this brave new era of endless litigation, caps and run on sentences that very few people read to begin with are a small price to pay :)

This is one of the biggest reasons why V2/V3 of the (L|A)GPL specifically say that altering the license is prohibited.

People sue, every day .. for damages that common sense should have averted. For instance "How did I know the coffee was hot? I wouldn't have spilled it on my lap if it was labeled as so .."

You really should take care not to weaken a 'shield' that prevents gold diggers from bothering you.

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Brilliant, thanks a lot! – Stefano Palazzo Dec 27 '10 at 16:35
The other biggest reason that the GPL licenses prohibit alteration, is that some jerk could otherwise take the GPL, insert some restriction like "you may not remove the link to my site" (flowplayer, i'm looking at you!), call it the GPL, and (1) make the initials "GPL" meaningless, and (2) mislead the FSF fans into incorporating the product without reading yet another copy of "the GPL" (which in reality places restrictions on them over and above the GPL, but that they'll never realize til they get sued). – cHao Nov 9 '11 at 21:30
up vote 2 down vote

The all-caps disclaimer in the MIT license is more or less a copy-paste from the legal language found in commercial shrink-wrap licenses, where the spelling out of "no warranties" is required to be more legally precise than it needs to be for free software. Since open-source licenses do exist that do not have this legal verbiage, I assume that the short form is probably OK.

As with all things legal, if you are really concerned about it, you should consult a lawyer that specializes in software licensing law.

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