Specifically, I wonder if a programmer publishes some of her own original source code with a clear intention of it being in the public domain rather than under any specific license, can she be held liable for any problems/trouble arising from others’ use of that source code?

I have read of advice saying that a programmer is better off legally to always specify a license which explicitly denies responsibility for its use rather than let the source code fall into the public domain. But I have not been able to find any details or specific cases regarding this question.

The Wikipedia articles on Public domain and Public domain software make no mention of liability.

1 Answer 1



Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not.

As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law.

To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put.

Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive.

  • Very interesting. Nice synopsis of the legal theory. One more thing I'd like to see is citations of cases where intellectual property, either source code or something similar like engineering or architectural designs, was given into the public domain and the giver was being held liable. Jan 6, 2016 at 21:17
  • I am unaware of any.
    – Dale M
    Jan 17, 2016 at 22:10

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