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Almost all free/open source software licenses include a section disclaiming any warranty or liability. This is not new; A 1985 licence for GNU Emacs includes the following:

GNU Emacs is distributed in the hope that it will be useful, but without any warranty. No author or distributor accepts responsibility to anyone for the consequences of using it or for whether it serves any particular purpose or works at all, unless he says so in writing.

It seems that the writers of early software licenses were aware that distributing software risked being construed as providing a warranty. Were there any notable cases in which a software distributor was sued for providing an implied warranty? Is similar phrasing used in other fields that software licenses would have borrowed this style of phrasing from? What is the broader pre-1985 historical context surrounding the "No Warranty" clause in software licenses?

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    (I'm most interested if there was a "smoking gun" case that led to this, i.e. a lawsuit of "I compiled your (free) code, and ran it, and my PC exploded!")
    – Kaia
    Feb 14 at 2:24
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    @MichaelHall My understanding here is a little bit vague, since I'm by no means a legal expert. But I believe the idea is that if a glitch in the software causes damages (eg, the free code causes a server crash, which costs a company $$$), that may still be a breach of the implied warranty. And offering the product for free doesn't necessarily remove that warranty. EG if I open Kaia's Trustworthy Trampoline Emporium and then donate trampoline to you for free, and you get hurt due to the trampoline's poor quality, you may still have a case against me. (which probably depends a lot on location.)
    – Kaia
    Feb 14 at 2:45
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    @MichaelHall If it doesn't exist already, "what's the difference between warranty and liability, and why do software licenses usually have two separate clauses saying there's no warranty and there's no liability" would also be a good question, because I don't know
    – Kaia
    Feb 14 at 2:51
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    Are you specifically interested in licenses? You asked about licenses in your question. In that case, there is not much time before 1985 that you could look at, depending on the jurisdiction. For example, in Pakistan, software is only copyrightable since 1992, so before 1992, there couldn't have been any copyright licenses for software. East Germany didn't have software copyright at all. The US only has it since 1980. Feb 14 at 19:30
  • @JörgWMittag for myself, I'm primarily interested in why (almost) all software licenses have included this clause. As you say, that probably means looking to things earlier than copyrightable software and software licenses, and things broader in scope than specifically software licenses.
    – Kaia
    Feb 14 at 20:30

1 Answer 1

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The concept of an implied warranty was one of the core features of Article 2 of the Uniform Commercial Code ("UCC"), governing the sale of goods, that was first approved for adoption by individual states in 1951, and was adopted by almost every state in the decade or so that followed. The UCC was innovative in the prominent role it gave to express and implied warranties relative to the Uniform Sales Act of 1906 from which it was adapted.

Early software writers were well aware that these concepts from the Uniform Commercial Code might be extended, as part of the common law, to contracts for the sale of software (which is outside the scope of Article 2 of the Uniform Commercial Code because it is not within the definition of a "good"). So, the sought to disclaim this liability at the outset.

In a related development, in the 1960s and 1970s, the period immediately leading up to first examples of mass marketed software, the common law of product liability, even in the absence of express or implied warranties, was rapidly become far more expansive.

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    The software in question is free. How are "contracts for the sale of software" are relevant?
    – Greendrake
    Feb 14 at 12:36
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    @Greendrake The software in question is "free" in the sense that people are allowed to copy and distribute it under the terms of the license. That doesn't mean it can't be sold. Indeed, it used to be common to buy CD-ROMs full of free software.
    – Sneftel
    Feb 14 at 13:12
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    @Sneftel Ha! You youngster! I was buying free software on floppy disks!
    – Peter M
    Feb 14 at 15:48
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    Does the word "state" in the first sentence refer to nation states or US states? It's not obvious which, and although there's no jurisdiction tag, I know the GNU licence was written initially in the US, so it could be the latter. Feb 14 at 16:15
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    @TobySpeight The reference is the U.S. states. The Uniform Commercial Code is a U.S. specific model statute.
    – ohwilleke
    Feb 14 at 16:34

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