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"Can you offer some specific examples where an open source software project has suffered harm as a result? I generally trust your judgement, but would like to s

"Can you offer some specific examples where an open source software project has suffered harm as a result? I generally trust your judgement, but would like to see the details." Not yet, but only because WTFPL is the only license i'm aware of that does not disclaim warranties, and it isn't all that popular. I can offer plenty of examples of regular old sales without them that have gone bad. I can also offer examples of cases where judgement went for the defendants because the warranties were disclaimed. As an aside, the WTFPL has a suggested warranty disclaimer in the FAQ, which is probably not effective in some places, which is even worse :(

nkurz 12y ago
I don't know if cases that involve an actual sale of a good are parallel enough to draw conclusions. I'm particularly looking for case law regarding implied warranty in the absence of a sale. My suspicion is that the disclaimer is an odd side effect of the desire to create a transaction so as to have an enforceable contract. In the absence of a sale or contract, I'm not sure what warranty would be construed. While false claims might cause damage, it seems like these might be issues even in the presence of a disclaimer.
- DannyBee 12y ago
  So, there is a definitely a contract, regardless of sale. This much is 100% certain (no court has otherwise sold). If the question is "can there be implied warranties on stuff given away for free", the answer is definitely "yes" In that sort of case, the only question is one of "damages", not of "validity of claim"
  - dragonwriter 12y ago
    > So, there is a definitely a contract, regardless of sale. How? Where is the mutual consideration? WTFPL looks like a gratuitous license, rather than a contract. > If the question is "can there be implied warranties on stuff given away for free", the answer is definitely "yes" The usual implied warranties of concern are implied warranty of merchantability and implied warranty of fitness for a particular purpose; the former only applies when a good is sold, and even then only when it is sold by a merchant in the class of goods to which it belongs. And the latter applies again only with a sale, and only when the buyer relies on the seller's selection of the good for a purpose identified by the buyer, or at least known by the seller before selling the product to the buyer.
    - DannyBee 12y ago
      "How? Where is the mutual consideration? WTFPL looks like a gratuitous license, rather than a contract." So if i understand your argument, because you are required to do nothing under the license, it is not a contract for lack of consideration? If so, this is an interesting argument. Let me turn it around then: Why, in your view, do most public domain dedications then include disclaimers of warranty (including CC-0), if they are pointless? As for the second, A. A vast number open source projects are sponsored or sold by merchants in the class of goods to which it belongs (consultants, companies people selling things on app stores, etc) B. You can sell something for zero dollars. C. For fitness, I specifically mentioned representations often made on mailing lists (IE as to whether the software would work for a given person) The gratuitous license argument is interesting (though from what I can tell, legal minds greater than mind still feel the urge to disclaim warranties in that case), but the contract/sale one is just completely uninteresting to me, given the lengths courts have gone in the past.
      - dragonwriter 12y ago
        > So if i understand your argument, because you are required to do nothing under the license, it is not a contract for lack of consideration? Yeah, that's like the first week of Contracts. > Let me turn it around then: Why, in your view, do most public domain dedications then include disclaimers of warranty (including CC-0), if they are pointless? Standard-form gratuitous licenses (incl. public domain declarations) often are written under the assumption that the transfer of the covered work may occur as part of a sales transaction (e.g., sale of media containing the work) from the licensor to the licensee, which is a situation in which implied warranties may be applicable. WTFPL is absolutely not suited for that use case, at least on its own, though nothing prevents you from including both the WTFPL and a warranty disclaimer. > B. You can sell something for zero dollars. You can't have a sale without a contract, and while you can have a contract without money changing hands, you can't have a contract with an intended two-way exchange of obligations. One party merely offering a limited waiver of some of its exclusive rights without asking anything in return that it wouldn't be entitled to anyway isn't a two-way exchange of obligations. > The gratuitous license argument is interesting (though from what I can tell, legal minds greater than mind still feel the urge to disclaim warranties in that case), but the contract/sale one is just completely uninteresting to me I don't think you understand -- they are exactly the same argument. A sale involves a contract. A license without a contract is gratuitous. You can't be interested in the argument of whether p is true but not be interested in the argument of whether ~p is true.
  - nkurz 12y ago
    While it's true that courts have held that open source licenses are enforceable (or at least not held to the contrary), I presume this is because of the specific way that each license is crafted. Since the license wants to be enforceable, it goes out of its way to create a contract. Are you saying that the simple statement "Use this as you see fit" would also be held to be a contract, even in the absence of consideration? If so, why all the convolutions and verbiage in the current licenses? And getting back to disclaimer of warranties, what about the absence of any stated license? Do you feel that a disclaimer of warranty is no more or less necessary with a license than without?

nkurz 12y ago

I don't know if cases that involve an actual sale of a good are parallel enough to draw conclusions. I'm particularly looking for case law regarding implied warranty in the absence of a sale. My suspicion is that the disclaimer is an odd side effect of the desire to create a transaction so as to have an enforceable contract. In the absence of a sale or contract, I'm not sure what warranty would be construed. While false claims might cause damage, it seems like these might be issues even in the presence of a disclaimer.

DannyBee 12y ago
So, there is a definitely a contract, regardless of sale. This much is 100% certain (no court has otherwise sold). If the question is "can there be implied warranties on stuff given away for free", the answer is definitely "yes" In that sort of case, the only question is one of "damages", not of "validity of claim"
- dragonwriter 12y ago
  > So, there is a definitely a contract, regardless of sale. How? Where is the mutual consideration? WTFPL looks like a gratuitous license, rather than a contract. > If the question is "can there be implied warranties on stuff given away for free", the answer is definitely "yes" The usual implied warranties of concern are implied warranty of merchantability and implied warranty of fitness for a particular purpose; the former only applies when a good is sold, and even then only when it is sold by a merchant in the class of goods to which it belongs. And the latter applies again only with a sale, and only when the buyer relies on the seller's selection of the good for a purpose identified by the buyer, or at least known by the seller before selling the product to the buyer.
  - DannyBee 12y ago
    "How? Where is the mutual consideration? WTFPL looks like a gratuitous license, rather than a contract." So if i understand your argument, because you are required to do nothing under the license, it is not a contract for lack of consideration? If so, this is an interesting argument. Let me turn it around then: Why, in your view, do most public domain dedications then include disclaimers of warranty (including CC-0), if they are pointless? As for the second, A. A vast number open source projects are sponsored or sold by merchants in the class of goods to which it belongs (consultants, companies people selling things on app stores, etc) B. You can sell something for zero dollars. C. For fitness, I specifically mentioned representations often made on mailing lists (IE as to whether the software would work for a given person) The gratuitous license argument is interesting (though from what I can tell, legal minds greater than mind still feel the urge to disclaim warranties in that case), but the contract/sale one is just completely uninteresting to me, given the lengths courts have gone in the past.
    - dragonwriter 12y ago
      > So if i understand your argument, because you are required to do nothing under the license, it is not a contract for lack of consideration? Yeah, that's like the first week of Contracts. > Let me turn it around then: Why, in your view, do most public domain dedications then include disclaimers of warranty (including CC-0), if they are pointless? Standard-form gratuitous licenses (incl. public domain declarations) often are written under the assumption that the transfer of the covered work may occur as part of a sales transaction (e.g., sale of media containing the work) from the licensor to the licensee, which is a situation in which implied warranties may be applicable. WTFPL is absolutely not suited for that use case, at least on its own, though nothing prevents you from including both the WTFPL and a warranty disclaimer. > B. You can sell something for zero dollars. You can't have a sale without a contract, and while you can have a contract without money changing hands, you can't have a contract with an intended two-way exchange of obligations. One party merely offering a limited waiver of some of its exclusive rights without asking anything in return that it wouldn't be entitled to anyway isn't a two-way exchange of obligations. > The gratuitous license argument is interesting (though from what I can tell, legal minds greater than mind still feel the urge to disclaim warranties in that case), but the contract/sale one is just completely uninteresting to me I don't think you understand -- they are exactly the same argument. A sale involves a contract. A license without a contract is gratuitous. You can't be interested in the argument of whether p is true but not be interested in the argument of whether ~p is true.
- nkurz 12y ago
  While it's true that courts have held that open source licenses are enforceable (or at least not held to the contrary), I presume this is because of the specific way that each license is crafted. Since the license wants to be enforceable, it goes out of its way to create a contract. Are you saying that the simple statement "Use this as you see fit" would also be held to be a contract, even in the absence of consideration? If so, why all the convolutions and verbiage in the current licenses? And getting back to disclaimer of warranties, what about the absence of any stated license? Do you feel that a disclaimer of warranty is no more or less necessary with a license than without?