3 ms·

I don't agree that view is conscious consensus. It's the track of the herd, perpetuated by copy-and-paste. Copy-paste disclaimers have grown, drip by drip, li

I don't agree that view is conscious consensus. It's the track of the herd, perpetuated by copy-and-paste. Copy-paste disclaimers have grown, drip by drip, like monster stalagmites in a damp cave. Successive, nervous lawyers deposit ever more warranties by name, some more or less made up by creative opposing counsel. Having attempted to list all conceivable warranties specifically, the language opens itself up to holdings that the drafters omitted the particular warranty the judge really wants to enforce, writing off any remnant general language of disclaimer. Big Time (and Blue Oak, and the PolyForm licenses) don't stop with the magic words "AS IS". In full, conspicuous formatting omitted: > As far as the law allows, the software comes as is, without any warranty or condition, and the licensor will not be liable to you for any damages arising out of these terms or the use or nature of the software, under any kind of legal claim. We can't stop courts from rendering bad decisions when they really, really want a result. But reading through Gaylord, the case you cited---admittedly, for the first time---I don't think the conclusory statement that "as is" can't apply to new goods ends our UCC 2-316(3)(a) conversation. We also have "other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty". Can a court really hold that Big Time software comes "with warranty", and expect to survive appeal? There was also a tort claim in Gaylord, which did stay dead on summary judgment. I think the Big Time license gets there, too, without having to specifically mention "tort". Again, by sticking to good general language, and not undermining it with a potentially incomplete list of specifics: "any kind of legal claim". At a higher level, there's a similar approach at work in Big Time's copyright and patent grants. Why list out all the exclusive rights of rights holders? Why risk omitting one, or putting it slightly different than in the relevant statute?

torstenvl 5y ago
> It's the track of the herd, perpetuated by copy-and-paste. While I agree with you that "everyone is doing it" doesn't mean it's right, it also doesn't mean it's wrong. > Successive, nervous lawyers deposit ever more warranties by name, some more or less made up by creative opposing counsel. There are four listed explicitly in the UCC: merchantability, fitness, non-infringement, and title. Since we're dealing solely in intellectual property (and it's a license, not a sale), I'd agree that title is superfluous to non-infringement. But the other three are well-grounded in both statute and fact. > Can a court really hold that Big Time software comes "with warranty", and expect to survive appeal? For most OSS developers, it isn't enough to win on appeal. They don't have the kind of money to go all Google v. Oracle. We want to shape the battlefield to win on summary judgment without a jury trial. BREAK BREAK Please don't take this disagreement as suggesting that I don't appreciate your contribution. I think it's great to see more lawyers who are active in this space, especially one who contributes as much as you do. To the extent you're open to suggestions, mine is solely to expressly disclaim the three applicable implied warranties. Everything else in what you've done, I absolutely love. Thank you for what you do.
- kemitchell 5y ago
  Merchantability, fitness, non-infringement, and title are indeed creatures of the UCC. We've got them covered under 2-316(3)(a) by way of "as is", and if courts strain like Alabama, "other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty". That (3)(a) language stands in the UCC as an explicit alternative to (2), which is where the requirements to name "merchantability" and "fitness" live. Even (2) itself provides an out for general language, when it comes to fitness: > Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof." So it's possible to exclude fitness with general language of (2) itself, without even falling back on (3). The idea that the UCC requires the exact words "merchantability" and "fitness" to disclaim those implied warranties is a myth. Just like the idea that the UCC requires all capital letters to make disclaimers conspicuous. If every disclaimer you've got in your form file, cribbed from different drafters, lists out the implied warranties in all capital type, you tend to gather they have to. Even if you then read 2-316, it's hard not to end up telling yourself "there must be case law out there requiring this". But if you dig up case law, you'll find courts using words like "deluded" for lawyers who think Caps Lock magically satisfies 1-201(10). Trial court judges tend to rule so as not to be reversed. Parties tend to litigate when judges will rule for their side. If someone gets burned by a bug in free Big Time software, wants compensation, and hires a lawyer to demand for it, they end up in a conversation like the one we're having now. You cite Grayson---or near to it as you can find in the relevant jurisdiction---and stoke legal nihilism. Those wacky courts could do anything! I cite the UCC, the language, the primacy of intent in contract construction, and the absurdity of construing terms to mean the opposite of what they plainly say. Plus the whole overarching question of whether a free transfer online to a counterparty the publisher may be wholly unaware of counts as a "sale" under the UCC.

torstenvl 5y ago

> It's the track of the herd, perpetuated by copy-and-paste. While I agree with you that "everyone is doing it" doesn't mean it's right, it also doesn't mean it's wrong. > Successive, nervous lawyers deposit ever more warranties by name, some more or less made up by creative opposing counsel. There are four listed explicitly in the UCC: merchantability, fitness, non-infringement, and title. Since we're dealing solely in intellectual property (and it's a license, not a sale), I'd agree that title is superfluous to non-infringement. But the other three are well-grounded in both statute and fact. > Can a court really hold that Big Time software comes "with warranty", and expect to survive appeal? For most OSS developers, it isn't enough to win on appeal. They don't have the kind of money to go all Google v. Oracle. We want to shape the battlefield to win on summary judgment without a jury trial. BREAK BREAK Please don't take this disagreement as suggesting that I don't appreciate your contribution. I think it's great to see more lawyers who are active in this space, especially one who contributes as much as you do. To the extent you're open to suggestions, mine is solely to expressly disclaim the three applicable implied warranties. Everything else in what you've done, I absolutely love. Thank you for what you do.

kemitchell 5y ago
Merchantability, fitness, non-infringement, and title are indeed creatures of the UCC. We've got them covered under 2-316(3)(a) by way of "as is", and if courts strain like Alabama, "other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty". That (3)(a) language stands in the UCC as an explicit alternative to (2), which is where the requirements to name "merchantability" and "fitness" live. Even (2) itself provides an out for general language, when it comes to fitness: > Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof." So it's possible to exclude fitness with general language of (2) itself, without even falling back on (3). The idea that the UCC requires the exact words "merchantability" and "fitness" to disclaim those implied warranties is a myth. Just like the idea that the UCC requires all capital letters to make disclaimers conspicuous. If every disclaimer you've got in your form file, cribbed from different drafters, lists out the implied warranties in all capital type, you tend to gather they have to. Even if you then read 2-316, it's hard not to end up telling yourself "there must be case law out there requiring this". But if you dig up case law, you'll find courts using words like "deluded" for lawyers who think Caps Lock magically satisfies 1-201(10). Trial court judges tend to rule so as not to be reversed. Parties tend to litigate when judges will rule for their side. If someone gets burned by a bug in free Big Time software, wants compensation, and hires a lawyer to demand for it, they end up in a conversation like the one we're having now. You cite Grayson---or near to it as you can find in the relevant jurisdiction---and stoke legal nihilism. Those wacky courts could do anything! I cite the UCC, the language, the primacy of intent in contract construction, and the absurdity of construing terms to mean the opposite of what they plainly say. Plus the whole overarching question of whether a free transfer online to a counterparty the publisher may be wholly unaware of counts as a "sale" under the UCC.