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Freeware is software released free of charge. Often times freeware is written by a hobbyist or academic who is looking to create a tool for their field, but is either not interested in profit or thinks that profit is not viable.

I know that in some states, such as in Virginia, freeware comes with "no implied warranty" as per § 59.1–504. But does that include no warranty against damages caused by buggy code? And is this issue still a state by state issue or is there a general guiding principle which would govern the issue here?

Since it is required to help answer the question, we'll assume the following.

License: MIT License

Jurisdictions of Interest: New York & US Federal Statues/Practice.

Note: I am excluding the obvious cases of gross negligence or maliciousness, such as including a virus in the code. Likewise I am excluding third party injury where the actions of the software cause damages to individuals who are not using it.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Pat W.
    Feb 26 at 19:22

4 Answers 4

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No, you can't

The last paragraph of the MIT License explicitly says the author is not responsible for damages (emphasis mine):

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.

A software license is not a contract. You didn't enter a contract with the developer or team. You found software online and decided to use the software. When you install paid software you are almost always presented with the EULA and check-box saying you agree to it. You took an action and agreed to the EULA. You didn’t have to agree to anything before getting access to the code under the MIT license.

The software is offered "as-is" which is further protects the author. You'd have to show the author convinced you to use the software fraudulently. You're unlikely to talk to the author at all, and since the entire source code is available for review, it would be very difficult if not impossible to claim fraud.

Finally, in the U.S. people have been sued using the Computer Fraud and Abuse Act. None of the notable cases involve embedding a virus in an open-source project. Of interest is how the CFAA defines a virus (emphasis mine)

(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;

Simply writing bad code wouldn't be enough. You'd have to prove the developer acted maliciously.

Hobbyists working for free don't usually have much money. The other major contributors to open source are large companies like IBM and Google, which have lawyers on retainer and deal with frivolous lawsuits frequently.

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    I am not sure stating you are not liable in the license protects you in all cases.
    – Joe W
    Feb 23 at 23:25
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    Perhaps not, but as is does. "The Magnuson-Moss Warranty Act will not protect the buyer of a product purchased without a warranty, such as a product purchased "as is" or "with all faults", but may protect a consumer who was misled into waiving the protection of a warranty." - If you sell a used car in Illinois, it says as is on the bill of sale otherwise you effed up.
    – Mazura
    Feb 24 at 0:52
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    The critical point is that just because a license, warranty, bill of sale or other document says something doesn't mean it will hold up in a court of law.
    – Joe W
    Feb 24 at 0:57
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    @slebetman - yes EULAs are contracts that the end user must agree to. The MIT license is not a EULA. Feb 24 at 6:35
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    @sevensevens End User LICENSE is a license. The difference is the part where the user has done any action to agree to the license apart from using the software. However, interpreting using the software as agreeing to the license (thus making it a contract) is the standard among all big companies like Wallmart, Google, Microsoft etc. If using the software is not agreeing to the license then open source licenses are useless because they can't force the users like Microsoft or Apple to comply with the terms of the license. This has never been tested in courts
    – slebetman
    Feb 24 at 10:24
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In addition to the argument that that particular license contains a disclaimer of liability as a condition of the license grant, you have no privity with the author.

The license binds your use of the software, but you have not entered into a contract with the author. A contract requires mutual consideration; so because you didn't pay for the license you are a just some random stranger who copied the author's work. The author has no contract with you, and no duty to you that could form the basis of a suit.

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  • I don't believe that paying for the software is the deciding factor here. Feb 25 at 16:58
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    It's a threshold issue. You can't just sue strangers for damages because you think they wrote some crappy software. You need privity to sue. Feb 25 at 17:31
  • Isn't this essentially saying that a contract was not formed since there was no consideration provided by the plaintiff to the developer?
    – Alexander
    Feb 26 at 0:13
  • Yes, and that there’s no other duty to the plaintiff that the author breached. Feb 26 at 14:12
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The exceptions to what you would generally expect — or the real leg work that needs more than barfing up what every mediocre lemon lawyer would know...

Other than contractual disclaimers, the Uniform Commercial Code which provides for implied an implied warranty of merchantability and fitness (for a particular purpose the seller knows and acknowledges a buyer to purchase it for) may not be waived, generally, in a commercial sale.

If the license does not exclude commercial use, and a merchant sells a license with permission, in certain conditions, an implied warranty of merchantability, that is, impliedly warranting that what the software is ordinarily used for, will do that.

As may also be relevant here based on specific facts, express warranties may also not be disclaimed, because “[p]rivity is not required for an action based upon an express warranty” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) since they are a unilateral contract or “"contractual" in the sense that it creates binding, legal obligations on the seller, (see Daugherty v. Am. Honda Motor Co. , 144 Cal.App.4th 824, 830, 51 Cal.Rptr.3d 118), but a warranty does not impose binding obligations on the buyer. (Norcia v. Samsung Telecomms. Am., LLC (9th Cir. 2017) 845 F.3d 1279, 1287-88)

And although “[t]he official Uniform Commercial Code comment in regard to section 2-313 “indicates that in actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement” (Young & Cooper, Inc. v. Vestring (1974) 214 Kan. 311, 521 P.2d 281, 291... .), and therefore, it is clear from the new language of this code section that the concept of reliance has been purposefully abandoned.

Furthermore, “[i]n Weinstat, dentists brought an action for breach of express warranty (among other claims) against the manufacturer of a tooth-cleaning device. 180 Cal.App.4th at 1217–18, 103 Cal.Rptr.3d 614. [t]he warranties at issue were contained in an instruction booklet sealed in the box containing the device. Id. at 1228, 103 Cal.Rptr.3d 614. [t]he manufacturer argued that such statements were not express warranties because the dentists were not aware of them before they bought the product[;] Id. [t]he court rejected that argument, holding that absent proof to the contrary, any affirmation made by the manufacturer before the delivery of the product to a consumer, including statements contained in the product box, constituted an express warranty. (Norcia v. Samsung Telecomms. Am., LLC (9th Cir. 2017) 845 F.3d 1279, 1287-88)

For the point to be made for the instant hypothetical, another important finding need also be stated: Not only statements, per se, including such that formally include a verb may constitute a warranty, mere explicit affirmations implying or allowing for the construction of a statement of fact by a reasonable person entering the bargain will create an express warranty including such — linguistics refer to these statements as “nominal” or “equations sentences”.

In fact, affirmations of such explicit sentences, in joint, may construe express warranties; for example the fact that “the label on [a] can coupled with [a] representation in the [local] newspaper ads that [its] contents contained no bones, constituted an express warranty” Lane v. C.A. Swanson Sons, 130 Cal.App.2d 210, 278 P.2d 723 (Cal. Ct. App. 1955).

Accordingly, in case the software code includes comments on what parts of the code are supposed to do what, those representation, and even nonverbal affirmations, may constitute an express and/or implied warranty if sold — even without a license to do so — since the seller may not evade it statutory duties imposed on them regarding the non-disclaimability of express or implied warranties “taking advantage of his own wrong”.

Conclusively, even if a seller had no right to sell the software, the buyer may enjoy statutory rights, even (i) if he attempted to disclaim all warranties, even if (ii) he personally never made any representations constituting alone or in joint any warranty or warranties, even if (iii) he was not aware of the explicit fractional representations in the software code comments in-joint constituting a warranty, and even if (iv) the seller fails or omits to set forth what remedies will be available under any warranty as constitutes in any of the above manners (since that would also allow the seller to take advantage of his own wrong), and therefore, the seller, if what the code is supposed to do for its ordinary purposes, it fails, he will be imposed a duty to refund the purchase as a matter of implied warranty of merchantability without the buyer having the duty to permit the seller to repair the software goods for the period as set forth in the U.C.C and/or other warranty statutes of the specific state (for e.g. lemon laws).

Implied and express warranties do not exclude each other since “[i]t is equally well settled that the substance of the express warranty does not in any way negate any of the implied warranties. ..." (Gherna v. Ford Motor Co., 246 Cal. App. 2d 639, 652 [55 Cal. Rptr. 94]; Gottsdanker v. Cutter Laboratories, 182 Cal. App. 2d 602, 610 [6 Cal. Rptr. 320, 79 A.L.R.2d 290].) "Where a contract expressly provides a remedy for a breach thereof, the language used in the contract must clearly indicate an intent to make the remedy exclusive" (Nelson v. Spence, 182 Cal. App. 2d 493, 497 [6 Cal. Rptr. 312]; Inner Shoe Tire Co. v. Tondro, 83 Cal. App. 689, 694-695 [257 P. 211]; former Civ. Code, § 1791, now Com. Code, § 2719, subd. (b)).

Although the unlicensed sale may not relieve a seller from being imposed the duties on by the U.C.C. and/or other lemon laws, the fact that that they do not do so as a matter of business activity typically does: A one-off sale by a private person or even a business who does not engage in the business of selling or leasing goods will exclude these duties. (Being aware of faults and falsely stating or concealing them of a freeware piece of software to be sold would create other causes of action by the buyer, for e.g., for fraud, but that is not a matter of what we typically understand under “warranty” or “guaranty” law duties.)

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    Are you training some AI model here?
    – Greendrake
    Feb 25 at 3:00
  • If code is being sold it is no longer freeware.
    – Joe W
    Feb 27 at 21:58
  • @JoeW I will congratulate to that succinct legal analysis; you should be admitted to the California bar now.
    – kisspuska
    Mar 4 at 18:06
  • Because I pointed out that talking about a commercial sale of software would mean it is no longer freeware which is distributed for free with no costs associated with it? Your answer does seem to go down the commercial sale route.
    – Joe W
    Mar 4 at 18:09
  • The activity may constitute a criminal enterprise but that does not mean the perpetrator(s) would be relieved from duties imposed by statute — including implied warranties of fitness especially in cases where a bug is fatal to the ordinary use, utility or performance of the software or one or more use, utility or performance aspects since there isn’t such requirement of, for e.g. the Song-Beverly or U.C.C. Read the last paragraph of the answer
    – kisspuska
    Mar 4 at 18:15
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Yes if the bug is part of a copyrighted code.

It's illegal to copy certain types of code. If your bug is part of your code that someone else copied you may be able to sue. This has been done previously when companies have stolen code from open license software and refused to share their code.

Yes if you have purchased the software

If you hired the person to do work for you, them making the work you pay them for freeware software wouldn't impact you. Per the Uniform Commercial Code, when you buy and sell goods, there can be an implied warranty.

So long as you have paid money for this piece of software, you can sue them if the bugs are sufficiently bad. This sort of thing is generally tricky to do as programmers do inevitably make bugs and you're supposed to test code you use, but it's possible if they were sufficiently negligent.

If the freeware acts as malware, MIT licenses aren't an effective shield.

It's illegal to distribute malware in New York, per Code Section 156.20, Code Section 156.05, and Code Section 156.27. Under federal law 18 U.S. Code Section 1030 it's also illegal. If the bugs are sufficient to make the program malware, then you could sue them for damages. Courts are generally reluctant to enforce contracts which enable illegal activity.

The bar for this will be fairly high. If for example the bug is that they send you ransomware which locks your computer unless you pay them money, then you could sue.

No if it's not your copyrighted code, you have no financial relationship with them, and they haven't done criminal damage.

If it's just some random code you copied from someone else and didn't use appropriately, you probably can't sue them.

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    The BusyBox lawsuits were about non-compliance of the GPL license. They had nothing to do with bugs or damage caused by bugs. Anyway, GPL compliance issues do not apply to the current Question, because the license in question is MIT.
    – Brandin
    Feb 24 at 8:19
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    "If for example the bug is that they send you ransomware" -- a bug refers to an unintentional mistake or problem. It'd be very, very, very hard to convince anyone that you unintentionally added ransomware to a product and then sent it to someone.
    – Brandin
    Feb 24 at 8:21
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    GPL compliance wouldn't cause the code to be buggy and cause damage
    – Joe W
    Feb 24 at 19:46
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    The “computer tampering” laws you cite do not apply, unless possibly the maintainer intentionally accessed a computer without authorization and altered a program so as to cause data loss. They say nothing about “malware.”
    – Davislor
    Feb 25 at 0:18
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    Malware is software which intentionally causes harm and which is designed to install itself on a user's computer without their consent (or at least without their informed consent), so it would make sense to prosecute it under a law which makes it a crime to intentionally access a computer without authorisation. The fact that a buggy program could have harmful effects is not "intentional unauthorised access", because the user voluntary authorised the program to be installed (knowing from the license that it could have bugs potentially causing harm), and the harmful bugs are unintentional.
    – kaya3
    Feb 25 at 3:06

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