Warranty and Liability Disclaimer

The BSD license contains a warranty and liability disclaimer . It is reproduced here, but not in the all-capital- letters form of the original license text.

This software is provided by the copyright holders and contributors "AS IS" and ANY EXPRESS OR IMPLIED WARRANTIES, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise ) arising in any way out of the use of this software, even if advised of the possibility of such damage.

The reason such provisions are often shown in all capital letters is that the law requires that these provisions be prominent so licensees will notice and read them. But capital letters are harder to read and are frequently ignored simply because of the printing. I much prefer to capitalize only very important words, such as the words AS IS in the above disclaimer, to highlight what is truly important.

The first sentence of the BSD disclaimer deals with warranties and the second sentence with liability. A disclaimer of warranty is independent of a disclaimer of liability. The BSD warranty disclaimer makes it clear that the licensor promises nothing about the software, and the liability disclaimer makes it clear that the licensor will not pay for any kind of damage, however caused.

A software warranty is a promise relating to such things as the quality, effectiveness, and reliability of software. Under the BSD license, there are no such promises. The licensor only promises to allow the user to practice the licensor's exclusive copyright (and perhaps patent) rights, nothing more.

Contract law and consumer protection laws provide for certain express and implied warranties. The BSD license intends to disclaim absolutely all of them. That is generally what the words AS IS means in contract law. Whatever faults or defects exist in the software as licensed, and whatever problems are later encountered while using the software, are not the licensor's concern.

The laws in some jurisdictions override warranty disclaimers in licenses and contracts. For example, in the United States certain warranty disclaimers for a consumer product are ineffective and will generally be ignored by the courts. Software by itself is not a consumer product under this law, but when software is combined into a consumer product such as a PDA or television recorder, the warranties of merchantability and fitness for a particular purpose cannot be disclaimed for that product regardless of what a license says, at least in the United States.

The second sentence of the BSD disclaimer deals with the liability of the licensor to pay damages actually incurred as a result of the use of the software.

The BSD license disclaims liability of any sort . This means that any damages caused by the software, whether to people, to computers, or to the licensee's business, are not going to be paid for by the licensor. Such liability disclaimers may not be legally effective in certain jurisdictions, particularly for consumer products. If a company distributes a consumer product that causes harm to people or property, the distributor may be liable regardless of what a license says.

It is unlikely that a court would extend liability in such a situation all the way up the chain of title to the contributor or distributor of general purpose software that happens to be included in a consumer product, but that is a factual situation that would need to be analyzed by an attorney at the appropriate time. The disclaimer language in the license, the characteristics of the software, and the existence of an agreed contract rather than just a bare license would be among the relevant facts that a judge would consider in determining whether a liability disclaimer is fair, under the circumstances, to an ordinary consumer who is injured by a software-based product.