What warranty would gratis software have?

Question

Most, if not all, free and open-source software (FOSS) licenses have a liability/warranty disclaimer. The GPL's disclaimer is especially long:

15. Disclaimer of Warranty.

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

16. Limitation of Liability.

IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

But even the short MIT license has one:

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.

Most of the time, the libre (free-as-in-freedom) software released under these licenses is also gratis (distributed at no charge). Because this is not always the case (you can sell free software), licenses have to allow for this scenario.

However, under the more common scenario where the software is both libre and gratis, would there be any warranty or liability for the authors if these disclaimers were removed? (I'm definitely not going to remove these disclaimers from the licenses of my software; I'm just curious whether or not they really do anything.)

Answer 1

Australian Consumer Law

australia

Goods and services supplied to consumers (broadly defined and includes many B2B transactions) come with consumer guarantees that are different to contractural warranties. These apply to the supply irrespective of if that was a sale or a gift. Remedies available include repair, replacement, or refund.

The GPL disclaimer is fine as it explicitly carves out an exception for this. The MIT licence is problematic as it suggests that a consumer has no remedy when they do and may itself be a breach of the ACL by being deceptive of misleading.

Removing the disclaimers would create an implied contractural warranty of merchantability and fitness for purpose if the supply is a contract rather than a gift. Remedies here can include damages including damage for consequential loss. Releasing it under a licence for free is still creating a contract: these licences require the user to make promises about what they will do and not do with the software. A promise is sufficient consideration under common law to create a contract.

Answer 2

where the software is both libre and gratis, would there be any warranty or liability for the authors if these disclaimers were removed?

Assuming that all the authors do is publish the software (as opposed to supplying it in the course of business activity in the related sphere — where they benefit from associated activities), then no.

The presence of those disclaimers is nonetheless helpful. It minimizes the number of ungrateful assholes who assume there is some warranty by default.