Re: applets, applications and static declarations

Tom Anderson <>
Sat, 23 Jan 2010 20:47:32 +0000
On Fri, 22 Jan 2010 07:12:00 -0500, "John B. Matthews" <nospam@nospam.invalid> wrote, quoted or indirectly quoted someone who said :

I must demur. Public domain lacks a critical element common to the open
source licenses cited: a disclaimer of warranty.

This business about public domain and warranty has always struck me as
fishy. IANAL, but i am certain that i give someone some PD software for
free, i am not implying a warranty. I may not have th power to disclaim a
warranty, but i don't need to, because one doesn't exist in the first

The reason being that warranty can only exist where there is a contract,
such as a contract of sale, including the kind that is entered implicitly
when someone sells something to someone. However, a contract can only
exist where each party gives the other 'consideration', which is an odd
legal term which roughly means 'something of value'. See:

The software is consideration on my part (assuming it's not worthless -
although if i wrote it, this isn't at all certain!), but i'm not receiving
any consideration from the person i'm giving the software to. Hence, no
contract, and hence, no warranty.

Note that this applies just as much to non-PD software that is given away
free, whether under an open source or proprietary license (as long as
there is no other form of consideration, at least).


You'll notice that the only mention of warranty in that article is with
reference to buyers and sellers.

I presume, then, that what the shouty warnings about not using the
software in nuclear power plants etc are all about is not disclaiming
warranty, but pointing out to the recipient that no warranty exists. That,
i would guess, is to guard against a claim that the distributor gave the
recipient the impression that there was a warranty, and so deceived them
to some deterimental end or something. Seems silly, but that's commercial
law for you. Anyway, i don't see any reason you couldn't put such a notice
on PD software. People would be free to take it off, but if they then
redistributed it, any theoretical liability for deception would fall on
them, not the original author.


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