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There's a reason this is in ALL CAPS: THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARR

There's a reason this is 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 MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. Even with the yelling, some people don't hear it.

tikhonj 3y ago
You can't just disclaim all legal liability like that. Lots of businesses have you sign waivers that absolve them of all liability in the even of injury or death even if caused by negligence, but they can still be successfully sued or even criminally prosecuted. Which is a good thing! A waiver should not be a pass to be willfully negligent much less actively malicious. How that applies to open source software is a deep technical and legal question and I don't have a clear answer, but I'm certain that just including a disclaimer is not sufficient on its own.
- candiodari 3y ago
  Isn't accepting the license supposed to be equivalent to signing a waiver? The reasoning is what huge corps keep using: if you don't accept the license, there is nothing that gives you the right to use the software, or even look at the software. Certainly you do not get to use it for any purpose whatsoever, in which case it wouldn't be possible to do damage.
NegativeK 3y ago
Isn't the title of the article addressing specifically those types of clauses? I'm fully behind the as is from volunteers and hope that it's not mucked with, but judges and legislatures change. The EU, for example, was ready to make all software devs liable for security issues, OSS or not, until the community rallied and informed them of how much of a disaster that'd be. Just because something is written into a waiver doesn't mean that it's enforceable.
gavinhoward 3y ago
The sibling comments are correct, unfortunately. We need licenses that become void when those disclaimers are not accepted.
- sverhagen 3y ago
  Wouldn't I be able to just "accept" the license, if I knew that by law the liability limitations were not enforceable? There's still plenty of folks clicking through boilerplate labor contracts too that stipulate non-competes, knowing those aren't enforceable in their (US) state anyway.
  - gavinhoward 3y ago
    If the license becomes void if the disclaimer doesn't hold, then you can't accept the license; the author(s) specifically say that you don't have that option. By copyright law, you would then have no right to use the software. Some people may not consider that FOSS, but I'm okay with that. Source: I am making such licenses, and though IANAL, I am halfway through working with a lawyer on those licenses.
    - sverhagen 3y ago
      Doesn't it depend on severability provisions in the license, or for the lack thereof, a severability ruling by a court, whether the license is voided if the liability limitation is ruled to be illegal? Or... to become illegal, in case such laws are enacted after the license is accepted?
      - gavinhoward 3y ago
        In most cases, no, at least according to the lawyer I have. He did put in a phrase that nullifies the license when a new ruling comes out or a new law is passed. Essentially, you may have accepted the license, but since I included the condition that the disclaimer is legal, I can withdraw the license for that reason. Having conditions for withdrawing the license is well-established. Without it, the GPL would not work because otherwise, it could not become void for an entity that doesn't share changes. IOW, you may have accepted the license, but that doesn't remove my power to take it away.

tikhonj 3y ago

You can't just disclaim all legal liability like that. Lots of businesses have you sign waivers that absolve them of all liability in the even of injury or death even if caused by negligence, but they can still be successfully sued or even criminally prosecuted. Which is a good thing! A waiver should not be a pass to be willfully negligent much less actively malicious. How that applies to open source software is a deep technical and legal question and I don't have a clear answer, but I'm certain that just including a disclaimer is not sufficient on its own.

candiodari 3y ago
Isn't accepting the license supposed to be equivalent to signing a waiver? The reasoning is what huge corps keep using: if you don't accept the license, there is nothing that gives you the right to use the software, or even look at the software. Certainly you do not get to use it for any purpose whatsoever, in which case it wouldn't be possible to do damage.

NegativeK 3y ago

Isn't the title of the article addressing specifically those types of clauses? I'm fully behind the as is from volunteers and hope that it's not mucked with, but judges and legislatures change. The EU, for example, was ready to make all software devs liable for security issues, OSS or not, until the community rallied and informed them of how much of a disaster that'd be. Just because something is written into a waiver doesn't mean that it's enforceable.

gavinhoward 3y ago

The sibling comments are correct, unfortunately. We need licenses that become void when those disclaimers are not accepted.

sverhagen 3y ago
Wouldn't I be able to just "accept" the license, if I knew that by law the liability limitations were not enforceable? There's still plenty of folks clicking through boilerplate labor contracts too that stipulate non-competes, knowing those aren't enforceable in their (US) state anyway.
- gavinhoward 3y ago
  If the license becomes void if the disclaimer doesn't hold, then you can't accept the license; the author(s) specifically say that you don't have that option. By copyright law, you would then have no right to use the software. Some people may not consider that FOSS, but I'm okay with that. Source: I am making such licenses, and though IANAL, I am halfway through working with a lawyer on those licenses.
  - sverhagen 3y ago
    Doesn't it depend on severability provisions in the license, or for the lack thereof, a severability ruling by a court, whether the license is voided if the liability limitation is ruled to be illegal? Or... to become illegal, in case such laws are enacted after the license is accepted?
    - gavinhoward 3y ago
      In most cases, no, at least according to the lawyer I have. He did put in a phrase that nullifies the license when a new ruling comes out or a new law is passed. Essentially, you may have accepted the license, but since I included the condition that the disclaimer is legal, I can withdraw the license for that reason. Having conditions for withdrawing the license is well-established. Without it, the GPL would not work because otherwise, it could not become void for an entity that doesn't share changes. IOW, you may have accepted the license, but that doesn't remove my power to take it away.