7. Warranty of Provenance and Disclaimer of Warranty

Both OSL and AFL

Licensor warrants that the copyright in and to the Original Work and the patent rights granted herein by Licensor are owned by the Licensor or are sublicensed to You under the terms of this License with the permission of the contributor (s) of those copyrights and patent rights. Except as expressly stated in the immediately preceding sentence , the Original Work is provided under this License on an "AS IS" BASIS and WITHOUT WARRANTY, either express or implied , including, without limitation, the warranties of NON-INFRINGEMENT, MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY OF THE ORIGINAL WORK IS WITH YOU. This DISCLAIMER OF WARRANTY constitutes an essential part of this License. No license to Original Work is granted hereunder except under this disclaimer.

A warranty is a promise that a proposition of fact is true. The licensor intends that the licensee rely on that promise, and under contract law may be required to compensate licen-sees for any loss if the fact warranted proves untrue.

The first sentence of section 7 is a warranty of provenance.

The word provenance (from the French provenir , "to originate") is used in the art and antiques world to refer to an object's history and ownership. Knowing the provenance of an art object is equivalent to knowing the chain of title to a piece of land. When used in the context of open source software, it indicates that the chain of title to the intellectual property in the software is known. (Refer to the discussion on chain of title to copyrights and patents in Chapter 2.)

The OSL/AFL provide a warranty of provenance to reassure customers that the origins and ownership of the intellectual property in the licensed open source software are known and legitimate . A licensor is in an ideal position to know the origins of his or her software and therefore to make such a warranty:

1. The licensor may have written the software him- or herself and, as the author of an original work of authorship , is the owner of the copyright in that software. A warranty of provenance is obviously justified in this situation.

2. The licensor may have received a written assignment of copyright from the original author. (In the United States, copyright assignments must be in writing. 17 U.S.C. § 204.) A written copyright assignment is appropriate evidence of authenticity and authority to grant licenses to the original work. A warranty of provenance is justified in this situation.

3. The licensor may have received a license ”perhaps an open source license or a contributor agreement ”authorizing him or her to sublicense the contribution or derivative works to third parties. Such a license is reasonable proof that the software is being transferred legitimately to third parties. Such a license may be proven by written records or by the conduct of the contributor when he or she sent a contribution to the project. A warranty of provenance is justified in this situation.

Unfortunately, some open source projects may not have the kinds of records of contributions that would allow them to provide a warranty of provenance. Those projects cannot use the OSL/AFL licenses.

It may come to pass that, despite careful record keeping and formal licensing procedures, an open source project discovers that a contribution is not authentic , a contribution agreement has been breached, or a contributor has not been entirely honest. The warranty of provenance is suddenly no longer appropriate. Continued distribution of the infringing contribution, of course, must be stopped ; that much is true even without a warranty of provenance. But what is the licensor's potential liability under that warranty for past breaches? I defer an answer to this question to the discussion of section 8 of the OSL/AFL, Limitation of Liability.

Note also that, even in the absence of a warranty of provenance, the intentional or reckless distribution of software for which you don't have a license may be punishable as fraud or an unfair business practice, or even as a criminal act of distributing stolen property.

The remainder of section 7 is a disclaimer of all other warranties, express or implied.

A warranty of "merchantability or fitness for a particular purpose" promises that the software is fit for the ordinary purposes for which such software is used, and that it conforms to the promises or affirmations of fact made in advertisements or in the software documentation. Because open source software is typically distributed without charge, it is expected that licensees will accept the risk that the software won't perform as designed or intended.

A warranty of "non-infringement" promises that the software does not infringe the copyrights or patents of third parties. Because it is generally impossible for any software distributor to determine whether copyright or patent claims from third parties will be made, and because the software is distributed at no charge, a warranty of noninfringement is not reasonable. The licensee is expected to accept that risk.

Note that a warranty of noninfringement is different from a warranty of provenance. The former is a promise that there will be no third party copyright or patent claims that may suddenly appear; the latter is a promise that the licensor's right to license the work is based on ownership or license.

The "including, without limitation" language in the warranty disclaimer indicates that the list of warranties (i.e., noninfringement, merchantability, and fitness for a particular purpose) is by way of example only. Any other express or implied warranties are also excluded.

There are no express warranties in the OSL/AFL except for the warranty of provenance. In all other respects, the software is "AS IS" and "WITHOUT WARRANTY."

Comparison to Other Licenses

No other open source licenses provide a warranty of provenance under that title. But other licenses contain similar representations. The MPL, in its section 3.4(c), and CPL, in its section 2(d), come closest .

All other open source licenses in this book provide a similar disclaimer of warranty. While the wording of those disclaimers differs among licenses, all include the AS IS phrase. Not all licenses specifically list the warranty of noninfringement, but it is implied by the "including, without limitation" language found in all warranty disclaimer provisions.