[HN Gopher] The MIT License, Line by Line
___________________________________________________________________
The MIT License, Line by Line
Author : known
Score : 245 points
Date : 2021-01-31 15:44 UTC (7 hours ago)
(HTM) web link (writing.kemitchell.com)
(TXT) w3m dump (writing.kemitchell.com)
| ChrisMarshallNY wrote:
| That was nicely done!
|
| I am glad to see an actual IP lawyer's view on this thing.
| rdpintqogeogsaa wrote:
| I would be interested in reading a similar piece from the
| perspective of someone with a background in the law of
| continental Europe. I adore this piece of writing, but it's very
| U.S.-centric in parts.
| derefr wrote:
| I think most of this (other than the historical references) is
| in reference to the effective "strong minimum standards" of the
| Berne Convention, and to the later treaties established between
| WIPO member nations. Therefore, it's _almost_ + globally
| applicable.
|
| + From Wikipedia, WIPO non-members: Kosovo, Federated States of
| Micronesia, Palau, South Sudan, and the states with limited
| recognition. Palestine has observer status.
| rdpintqogeogsaa wrote:
| The devil is, however, most often in the details. Lines such
| as
|
| > _United States law calculates copyright terms differently
| for individual and "corporate" authors._
|
| make me wonder what it is like in, say, France or Germany.
| ben_bai wrote:
| In Germany Copyright (Urheberrecht) is always with the
| original author and can not be sold or given to somebody
| else. It can be inherited.
|
| One can sell or give permission the right to publish,
| duplicate, whatever (Verwertungsrecht).
|
| Writing a book on company time and money automatically
| awards the company the rights to publish, make money, etc.
|
| Writing a book in you spare time with "work related
| knowledge" might award the company with a claim for buying
| (at fair value) the publishing rights.
|
| If you write a bestseller on company time you might also be
| entitled to a compensation in addition to your payrole.
| (But always best to have a contract beforehand)
|
| But on the whole Germany is in the Berne convention.
| ghaff wrote:
| Yes, my understanding is that is one of the reasons why
| trying to just place something in the public domain is
| problematic in various countries in continental Europe.
| There are potentially issues in other countries as well
| but "moral rights" aren't really a problem in common law
| countries.
| tomcam wrote:
| Until 5 minutes ago, I thought myself pretty copyright-savvy.
| I've spent perhaps $200,000 on IP attorneys over the last couple
| of decades--far more than most HNers, far less than many others.
| I also follow IP law loosely because it interests me.
|
| Turns out I'm still a tyro.
| kemitchell wrote:
| For what it's worth, the author of the post has a lot to learn,
| too.
| paxys wrote:
| > 171 words every programmer should understand
|
| Except there really isn't any agreement on some of the finer
| details of the license, no matter how much you want to study and
| understand it. Does the license text have to be included in only
| the source code or the compiled software? What if the source code
| of the derived software isn't made public? What is "substantial
| portions" of the software? Can a MIT project be relicensed? What
| is the point of any of these clauses then?
|
| While it is a great license, I wish something closer to just
| public domain would have become the OSS default, since that is
| what 99% of developers want anyways.
| kemitchell wrote:
| I was involved with a group of open licensing lawyers that
| ended up publishing a "model" permissive license:
| https://blueoakcouncil.org/license/1.0.0
|
| It's not everything anyone ever wanted, but we think it's a lot
| closer.
| rectang wrote:
| I like the way this license is much clearer about rights and
| obligations. From the standpoint of software developers being
| able to grok it, it looks like a strong improvement on the
| MIT and BSD families.
|
| If you are serious about adoption, I suggest providing an
| official header to embed in files. Something simple like
| this: // Licensed under
| https://blueoakcouncil.org/license/1.0.0
|
| Also "instructions on how to use this license in your
| software project" would be helpful. (Paste the text of the
| license into a file named "LICENSE", "LICENSE.md", or
| similar. Add the header as a comment to every file...)
| kemitchell wrote:
| Thanks. We didn't originally set out to write a new
| license, but when we did, we put real time and thought into
| it. It's nice to see that appreciated.
|
| We've shied away from declaring one "right" way to use the
| license, because norms, conventions, and expectations vary
| so much across development communities. What's right and
| normal for, say, Maven artifacts would seem a bit strange
| in, say, an npm package or a C library.
| luord wrote:
| I too like the license, and wouldn't mind using it. Have
| you considered submitting it for approval to the OSI and
| FSF?
| kemitchell wrote:
| Everyone involved in the drafting has been through the
| OSI license process---or some ever-changing version of it
| ---before. Last we discussed, nobody wanted to do that
| process again, even for an uncontroversial permissive
| license.
|
| Personally, I don't care what OSI says. If someone else
| wants to go and ask them about it, more power to them.
| rectang wrote:
| > Can a MIT project be relicensed?
|
| Among more sophisticated users I don't think there's
| disagreement on this point. The answer is "no", if by
| "relicense" you mean "remove the MIT license and put in
| something else". You can never legitimately remove the MIT
| license from a file unless you're the copyright holder or their
| authorized agent.
|
| Where there's less than total agreement is whether the MIT
| license may be _subsumed_ by another license -- e.g. the Apache
| License 2.0 -- when an MIT licensed work is bundled within a
| package. Can you claim that the complete package is available
| "under the Apache License 2.0", omitting the fact that the
| licenses are actually polyglot?
|
| The answer to that question seems to be "everybody does that"
| and "in practice, the legal risk seems to approach zero", but
| in theory should two licenses ever prove to have incompatible
| provisions then things could get sticky in a court case.
| systemvoltage wrote:
| > The above copyright notice and this permission notice shall be
| included in all copies or substantial portions of the Software.
|
| What's the reasoning behind asking users to carry around a
| notice? Why not just let users go without it? Is it for legal
| reasons or for crediting the authors? I've released MIT licensed
| software before and frankly when someone is using my code, I
| really don't care about credit or leaving behind a legacy or such
| things.
| [deleted]
| kemitchell wrote:
| https://writing.kemitchell.com/2020/12/27/War-on-License-Not...
| shawnz wrote:
| The article gives 3 reasons for the notice requirement right
| below that quote. Which ones do you disagree with?
| torstenvl wrote:
| You're removing the license in that case, which means
| downstream users aren't informed that they are direct
| licensees. It's dishonest.
|
| Additionally, the Berne Convention recognizes a "moral right"
| to claim authorship.
|
| https://wipolex.wipo.int/en/text/283698
| systemvoltage wrote:
| This is what I was looking for, thanks for the insight. The
| way I understand this - if I don't put my authorship, it
| becomes a liability for the users of my code since they have
| no traceability of where the code came from. Am I reading
| this right?
| torstenvl wrote:
| Yeah downstream users wouldn't know that the license text
| came from someone who can actually license it.
|
| The combination of the copyright and permission notice says
|
| "This is mine _AND_ you can do these things with it if you
| want. "
|
| Claiming ownership by itself does not result in it being
| open source.
|
| Saying you're giving permissions, but without claiming the
| right to be able to do so, also does not result in it being
| open source.
| ghaff wrote:
| Understanding the license in use and the permissions associated
| with it are important in many contexts. In fact, the MIT
| license was created in the first place because there were
| issues associated with just releasing X Windows into the public
| domain.
| sidpatil wrote:
| This line confused me for a while, because it looked like a
| copyleft provision to me.
| systemvoltage wrote:
| It's not copy left, but users have the right to see the
| license "tree" if you will of all the things you've built
| your code with.
|
| I think, as others have pointed out in the replies, 0BSD or
| MIT-0 is more suitable for me.
| sidpatil wrote:
| > I think, as others have pointed out in the replies, 0BSD
| or MIT-0 is more suitable for me.
|
| Why not go with [CC0] in that case? It's a lot more robust,
| and recommended by the FSF over options like the Unlicense.
|
| [CC0] https://creativecommons.org/publicdomain/zero/1.0/
| ghaff wrote:
| Note that the OSI does not recommend CC0 however because
| of its patent language. [1] The OSI didn't reject it but
| the license was withdrawn after it was presumably clear
| that it would not be approved.
|
| [1] https://opensource.org/faq#cc-zero
| torstenvl wrote:
| I can't imagine using CC0 under any circumstances. If
| you're in the U.S., commit to public domain. If you
| aren't, then veering way off into contract law instead of
| copyright law is distinctly unhelpful. There isn't a
| Berne Convention to cross-level contract law.
| CameronNemo wrote:
| Where is the FSF recommendation? And did they only
| consider unlicense?
| jacobr1 wrote:
| https://www.gnu.org/licenses/license-list.html#CC0
| CameronNemo wrote:
| Is requiring attribution copyleft? I thought copyleft implied
| needing to make source code available.
| TwoPizza9612536 wrote:
| Just needing attribution is not copyleft, you are giving
| credit to the original author. Share-Alike or using the
| same license to make source code available like GPL is
| copyleft.
| xeeeeeeeeeeenu wrote:
| >I really don't care about credit or leaving behind a legacy or
| such things.
|
| Then use a different license. In 1-clause BSD and Boost
| licenses the requirement of preserving copyright notices
| applies only to source code, while 0BSD and CC0 don't require
| that at all.
| systemvoltage wrote:
| Thanks. I was wondering which license actually satisfies
| "Don't care" philosophy and gets me out of any legal
| responsibility/liability.
| torstenvl wrote:
| Just commit the work to the public domain then.
| davidcuddeback wrote:
| Wouldn't you still need language to disclaim warranties
| and liabilities?
| jraph wrote:
| Not legally possible in many jurisdictions.
| pmoriarty wrote:
| There's also this: DO WHAT THE FUCK YOU
| WANT TO PUBLIC LICENSE Version 2,
| December 2004 Copyright (C) 2004 Your Name
| <name@example.com> Everyone is permitted to
| copy and distribute verbatim or modified copies of
| this license document, and changing it is allowed as long
| as the name is changed. DO WHAT
| THE FUCK YOU WANT TO PUBLIC LICENSE TERMS AND
| CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
| 0. You just DO WHAT THE FUCK YOU WANT TO.
| davidcuddeback wrote:
| That license doesn't seem to satisfy the parent's
| requirements:
|
| > _gets me out of any legal responsibility /liability_
|
| The license you posted doesn't disclaim any warranties or
| liabilities. I suggest reading what TFA's "Warranty
| Disclaimer" section says about UCC defaults. The way I
| read it (IANAL), you would have more liability with the
| license you posted than you would under the MIT license.
| eeZah7Ux wrote:
| It's even worse than that. The longer the text, the
| stronger it is in court.
|
| That's why contracts like proprietary licenses, buying a
| house, renting are so verbose.
|
| "do wtf you want" is very unclear from a legal PoV.
| ghaff wrote:
| Also MIT-0. Note that CC0 is not an OSI-approved license. It
| was withdrawn because the OSI didn't like that it explicitly
| does not grant patent rights to use the software.
| jraph wrote:
| When I read your comment I initially thought "that can't be
| right".
|
| And then I found [1]:
|
| > CC0 was not explicitly rejected, but the License Review
| Committee was unable to reach consensus that it should be
| approved, and Creative Commons eventually withdrew the
| application. The most serious of the concerns raised had to
| do with the effects of clause 4(a), which reads: "No ...
| patent rights held by Affirmer are waived, abandoned,
| surrendered, licensed or otherwise affected by this
| document.". While many open source licenses simply do not
| mention patents, it is exceedingly rare for open source
| licenses to explicitly disclaim any conveyance of patent
| rights, and the Committee felt that approving such a
| license would set a dangerous precedent, and possibly even
| weaken patent infringement defenses available to users of
| software released under CC0.
|
| For the record, the FSF also recommends against using CC0
| for software for the exact same reason [2].
|
| I was surprised because my first impression was that this
| clause does not legally do anything more, anything less
| than a license that does not explicitly grants the rights
| to use the related software patents anyway. But I can
| imagine that without an explicit mention, a judge could
| still decide that a user receiving a program could
| reasonably feel allowed to use the related patents from its
| authors.
|
| Anyway, CC0 should not be used or software indeed I guess,
| given the vagueness around it.
|
| [1] https://opensource.org/faq#cc-zero
|
| [2] https://www.gnu.org/licenses/license-list.html#CC0
| xeeeeeeeeeeenu wrote:
| >I was surprised because my first impression was that
| this clause does not legally do anything more, anything
| less than a license that does not explicitly grants the
| rights to use the related software patents anyway. But I
| can imagine that without an explicit mention, a judge
| could still decide that a user receiving a program could
| reasonably feel allowed to use the related patents from
| its authors.
|
| Yes, many lawyers believe in implicit patent license:
| http://en.swpat.org/wiki/Implicit_patent_licence
| ghaff wrote:
| Here's a piece by Scott Peterson (Red Hat legal) that
| analyzes this with respect to the MIT license
| specifically: https://opensource.com/article/18/3/patent-
| grant-mit-license
| CameronNemo wrote:
| FWIW, the 0BSD license omits this line and has been OSI
| approved.
| ghaff wrote:
| The MIT No Attribution License (MIT-0) is also OSI approved
| now which is effectively a public domain license. The caveat
| is that it won't be an approved license at a lot of
| companies, both because it's new and because many companies
| shy away from public domain software.
| rectang wrote:
| My understanding is that companies are leery of public
| domain because it means _disclaiming copyright_. It looks
| to me as though with MIT-0 you still retain copyright and
| are just granting an extremely liberal license?
|
| That may prove to be a distinction without a difference if
| it's ever tested in court, but "giving up copyright" is
| scary to management so it's meaningful in practice.
| ghaff wrote:
| IANAL but my understanding is you're pretty much right.
| The problem is that there is no standard established way
| to disclaim your rights. And, in continental Europe in
| particular, it's not totally clear that you _can_
| disclaim "moral rights" to something you've created.
|
| A lot of this is mostly theoretical legal stuff but
| lawyers worry about that sort of thing with the result
| that a lot of companies won't touch public domain
| software even if they know its provenance.
| cbhl wrote:
| The MIT license was written in the late 1980s.
|
| It was typical for software to be distributed in physical media
| (floppy disks, and, later, CD-ROMs) through brick-and-mortar
| retail stores. It was not uncommon for someone to sell physical
| media with otherwise-free software, and so it was desirable to
| make end-users aware that the software was available for free.
| The GPL's "accompany it with a written offer... of the
| corresponding source code" is also an interesting holdover from
| this era (nowadays everyone just distributes source over the
| Internet, instead of sending checks and CDs through the mail).
|
| Copyright notices were also typically visible when you first
| started a program in the 80s and 90s. These were relegated to
| "about" menus when it became the norm to "design a launch
| screen that's nearly identical to the first screen of your app"
| to make apps feel faster.
| alkonaut wrote:
| How is this "inclusion" typically done for a project that is
| deployed in compiled format and contains hundreds of libraries
| with dozens of different licenses? It must be especially
| difficult on devices where it's difficult to accept user input
| or display licenses.
|
| In commercial desktop software I have shipped, it has been a
| section in help>about with a long list of third party libs each
| showing a text document.
| CameronNemo wrote:
| I downloaded trivy (a go CLI tool) recently and they have
| some tooling to pack up dependency licenses and include them
| in the release tarball.
|
| It is possible and quite easy, if you plan ahead. Notably,
| Debian binary packages include extensive copyright
| information.
| alkonaut wrote:
| But are licenses only included in e.g a zip with binaries
| but not available from "within" the software counting as
| included/available?
|
| For anything distributed as source it's easy enough.
| notRobot wrote:
| (2016)
| flixic wrote:
| It's not like anything in the license has changed since late
| 80s.
| ghaff wrote:
| That's not quite true. Sometime in the 1990s, before the OSI
| version became the canonical one, it seems to have morphed
| from a variant of the X Consortium license to the ECMA
| license. [1] But, yes, nothing has changed in the past 20
| years.
|
| [1] https://opensource.com/article/19/4/history-mit-license
| ghaff wrote:
| Duh, that should be Expat license, not ECMA.
| aklemm wrote:
| At risk of piling on, it is silly to cargo-cult dating
| articles. This is a case where the date truly is not
| relevant, and that should be recognized. That's a minor point
| compared to the larger phenomenon which is the insistence on
| recency for our attention. Why? Probably because the long
| tail isn't profitable enough, but it is a shame every portal
| onto the 'net except archive.org and wikipedia.org insist on
| recency for relevance.
| detaro wrote:
| Providing a date for context is not "insisting on recency
| for relevance", it's providing context. Even if that
| context is just that some people recognize "ok, that's the
| article I read a while back and not an updated version".
| shawnz wrote:
| In fact the author did later post a follow-up highly critical
| of the MIT license, recommending their own creation instead:
|
| https://writing.kemitchell.com/2019/03/09/Deprecation-
| Notice...
| xixixao wrote:
| I was hoping for a discussion of the "substantial portions" term.
| The explanation focuses on use as a dependency, but what if I
| take some MIT code and modify it and include it directly in my
| project? What counts as "substantial portion"?
| torstenvl wrote:
| In general it means "this applies to derivative works." At
| best, it might provide an argument that APIs aren't covered
| (now that that's a thing). But copyright law doesn't really
| recognize "substantial portion" as a term of art (though it's
| arguably related to one of the prongs of a Fair Use inquiry).
| IANYL but my personal practice is and would be to ignore the
| word "substantial."
| CameronNemo wrote:
| So if I copy a 3 line example off stackoverflow I may need to
| add a license disclaimer... Wow.
| njharman wrote:
| Read the SO TOS. Probably can't legally include that unless
| SO gives you license.
|
| Thanks to the 197? Law that provided automatic copyright
| the instant anyone says or does anything copyrightable.
|
| I'm sure SO TOS states by using this site you assign or
| grant copyrights to SO. Same as HN and any site otherwise
| they'd be liable for reproducing what I wrote in this
| comment which in USA is automatically copyrighted to me the
| moment I hit "reply".
| greggyb wrote:
| It depends on SO's terms of use. Without any terms to the
| contrary, which I am confident exist, you would be
| violating copyright by copying that example, regardless of
| attribution.
|
| Assuming the example is the original work of the author of
| the post (and again, assuming no other terms), then that
| post author would hold copyright to the work. You would
| have no license to copy or distribute it.
|
| I have great confidence that SO's terms include a section
| wherein contributors grant license or grant copyright to
| SO. At that point (again, assuming no other terms), you
| would still have no right or license to copy or distribute
| the work.
|
| Assuming SO has a very permissive license to the work,
| including the ability to re-license it, they can grant you
| a license to copy or distribute the work. At that point you
| are bound by the terms of the license SO grants you.
|
| Read the terms to get specifics.
| grae_euler wrote:
| Does anyone know of a similar breakdown for licences like GPL v2
| and the like? It's a part of programming I feel like I should
| know more about but never took the time to look at.
| qwertygnu wrote:
| Linked on the first line of the article:
|
| https://writing.kemitchell.com/series/line-by-line.html
| jedimastert wrote:
| Contains a post about the AGPL, which specifically _does not_
| go into detail about the GPL but just the difference between
| them.
|
| Not super helpful
| ignoramous wrote:
| Needs a new edition but comprehensive enough for GPLv2:
| https://www.oreilly.com/library/view/understanding-open-sour...
| eeZah7Ux wrote:
| https://writing.kemitchell.com/2019/03/09/Deprecation-Notice...
| smlckz wrote:
| Why is there ''and/or'' in the MIT license text? Why is it
| needed?
|
| Does the phrase ''this permission notice'' cover the following
| disclaimer?
|
| Also, what is the shortest possible license that is functionally
| equivalent to the MIT license?
|
| The shortest ''license'' I've ever seen is this:
| https://git.suckless.org/dmenu/file/arg.h.html
| /* * Copy me if you can. * by 20h
| */
|
| Is this really a license? What about the SQLite blessing?
| lytedev wrote:
| Probably to clarify against exclusive or?
| TwoPizza9612536 wrote:
| The "and" means include and the "or" means optional. It needed
| because it basically states your rights on what you can do with
| the software and means you can distribute if you choose to
| distribute the software, it your choice or right to distribute
| the software (from the MIT License).
|
| The phrase "this permission notice" also cover the "NO
| WARRANTY" disclaimer for the software because you will have to
| include the license if you use it in another software but you
| can provide warranty under a close source license or your
| license states you will provide warranties. The "copyright
| notice" and "this permission notice" means the license.
|
| The shortest possible license that is functionally equivalent
| to the MIT license is the ISC license, it was created to remove
| language that is not needed. Read the Wikipedia article here
| https://en.wikipedia.org/wiki/ISC_license. I do not know other
| licenses than this.
|
| Technically it is a license but do not use it and it is just
| probably a joke. The SQL Blessing is technically probably a
| Public Domain waver.
|
| This is not legal advice and I am not a lawyer.
| thed wrote:
| This article touches a point I have been wondering about
| regarding the Notice condition: "But web developers, as a whole,
| haven't got the memo.".
|
| The JavaScript and npm ecosystem are extremely dependency-heavy.
| Even if you only take a few yourself, the number of sub-
| dependencies of even a simple application are often in the
| hundreds.
|
| Why does "everyone" ignore the attribution of their dependencies
| and sub-dependencies? Laziness? Risk of getting sued too low?
| What happens if Oracle buys all the left-pads in the world?
| kemitchell wrote:
| I doubt there's any single answer that isn't tautological. In
| other kinds of development, like embedded programming, notice
| files are a part of the cycle. Web developers simply haven't
| developed the habit.
|
| Which is a real head scratcher, because as a rule, JavaScript
| developers use JavaScript package managers, and JavaScript
| package managers, especially npm, provide good license metadata
| and auditability. You can have an automated tool, usually a
| plugin for your front-end bundler, compile a pretty good notice
| file for you, no many how many direct and transitive
| dependencies you have.
|
| I think there's also a chicken-and-egg problem, in that it's
| not exactly clear how to make the notices file for front-end
| code available. Link from website footer? At the top of the
| client bundle? Comment at the top of the client bundle, with a
| URL for the notices files?
| detaro wrote:
| I've seen at least some minified/bundled JS files that neatly
| preserved the copyright notices for each minified blob they
| included.
| ignoramous wrote:
| Minifiers and obfuscators are one reason newer licenses
| like MPLv2 don't require minified JavaScript to carry
| attribution and copyright notices.
| detaro wrote:
| MPLv2 does require you to inform the recipient that the
| software is under MPLv2 and where to find the source code
| for it.
| ignoramous wrote:
| Yes, but not necessarily as part of the minified code.
|
| > _Q16: Is "minified" JavaScript Source Code?_
|
| > _No. Minified JavaScript, while not an "executable" in
| the software engineering sense of the word, is difficult
| for humans to read, edit, and modify. As such, it is not
| "the preferred form for modification" and so it is not
| Source Code as defined by the license. Therefore,
| minified JavaScript is the Executable form, and the
| responsibilities set out in the license for distribution
| of the Executable form should be met when you distribute
| minified MPL-licensed JavaScript._
|
| > _This means, among other things, that you do not need
| to, and probably should not preserve the MPL boilerplate
| (which begins "This Source Code Form...") when minifying
| JavaScript. However, you do need to comply with section
| 3.2(a) by informing the recipients of the minified source
| how they can obtain a copy of the source code. How
| exactly you do this will depend on how they can obtain
| that copy, but one way would be to include a comment with
| a link to the source code in either the page which uses
| the JavaScript or in the JavaScript file itself._
|
| > _Note that treating minified JavaScript as an
| executable increases distributor flexibility by allowing
| MPL-licensed code to be combined into a single file with
| non-MPL JavaScript source code without requiring the non-
| MPL code to be distributed under the terms of the MPL._
|
| Ref: https://www.mozilla.org/en-US/MPL/2.0/FAQ/
| torstenvl wrote:
| I'm not following your train of thought here really. Are you
| saying that people are stripping out the notice from the source
| code as a matter of course and then redistributing it?
| 6gvONxR4sf7o wrote:
| Is that minification?
| cyral wrote:
| I thought minifiers were supposed to keep licenses (they
| can detect the license header). I suppose this could get
| turned off or messed up by accident with the gigantic
| custom webpack bundlers even stuff like create-react-app
| ship with.
| nicoburns wrote:
| Lots of libraries don't put the license in the header,
| only in a separate LICENSE file.
| IshKebab wrote:
| He's saying that if you depend on A and A depends on B and
| they're both MIT licensed then technically you should include
| the licenses for A _and_ B on your site, but most people only
| include A.
| torstenvl wrote:
| Great article, similar to a blog post I did recently.
|
| This is a minor nitpick and shouldn't be read as an overall
| criticism of the author or this post, which is better than the
| one I did. However, I will note that non-infringement and title
| are, in fact, implied warranties in the UCC. I'm not sure why the
| author missed it.
|
| https://www.law.cornell.edu/ucc/2/2-312
| dctoedt wrote:
| Minor correction: Under UCC SS 2-312(3) (link in parent), non-
| infringement is an implied warranty only if the seller is a
| "merchant," i.e., one who regularly deals in goods of the kind.
|
| The _implied_ warranty of noninfringement can be disclaimed
| under SS 2-316, and vendors almost universally do so
| (preferring to make specific _express_ warranties instead when
| they perceive a market need).
|
| https://www.law.cornell.edu/ucc/2/2-316
| kemitchell wrote:
| Hiya, DC. Glad to see your name here. :-D
|
| The UCC nerds are out in force this round!
| [deleted]
| [deleted]
| tacitusarc wrote:
| > The implied warranty of "merchantability" under UCC section
| 2-314 is a promise that "the goods"--the Software--are of at
| least average quality, properly packaged and labeled, and fit for
| the ordinary purposes they are intended to serve.
|
| So, all goods have an implied warranty requiring they must be of
| at least average quality? How does that work? Does average have a
| different meeting in a legal context?
| throwaway8581 wrote:
| The article doesn't really get it right. This is what the UCC
| actually says:
|
| _(2) Goods to be merchantable must be at least such as: (a)
| Pass without objection in the trade under the contract
| description; and (b) In the case of fungible goods, are of fair
| average quality within the description; and (c) Are fit for the
| ordinary purposes for which such goods are used; and (d) Run,
| within the variations permitted by the agreement, of even kind,
| quality and quantity within each unit and among all units
| involved; and (e) Are adequately contained, packaged and
| labeled as the agreement may require; and (f) Conform to the
| promises or affirmations of fact made on the container or label
| if any._
|
| Here is what the official comments to the UCC say:
|
| _Paragraphs (a) and (b) of subsection (2) are to be read
| together. Both refer, as indicated above, to the standards of
| that line of the trade which fits the transaction and the
| seller 's business. "Fair average" is a term directly
| appropriate to agricultural bulk products and means goods
| centering around the middle belt of quality, not the least or
| the worst that can be understood in the particular trade by the
| designation, but such as can pass "without objection." Of
| course a fair percentage of the least is permissible but the
| goods are not "fair average" if they are all of the least or
| worst quality possible under the description. In cases of doubt
| as to what quality is intended, the price at which a merchant
| closes a contract is an excellent index of the nature and scope
| of his obligation under the present section._
|
| So if you understand (a) and (b) in unison, it means that you
| can't sell someone a lot of goods but then send them all below-
| average quality units. But, of course, a truck load of apples
| can still have a "fair percentage" of low-quality apples. Where
| you're selling a single item, like a computer, then (a) is the
| better lens of looking at it.
|
| None of this is legal advice. I'm not your lawyer.
| kemitchell wrote:
| I paraphrased, because I don't think the nuances matter that
| much in context. The subject is a broad _disclaimer_ of
| implied warranties, after all. Quoting the UCC and
| commentaries would only distract the reader and make the post
| longer.
| throwaway8581 wrote:
| In this case, I think it'd be better to leave the "average"
| language out of it altogether. It doesn't really capture
| any useful intuitive notion for the reader and instead
| engenders misunderstanding, as shown by this thread.
| tacitusarc wrote:
| Thank you, this clarifies things. If I understand correctly,
| then, the requirement is that the average of a set of goods
| sold within a contract must be at least the quality specified
| by the contract. So it's not really talking about the average
| overall in a market of that good, it's talking specifically
| about the average quality of, say, a shipment of goods.
| danaliv wrote:
| We're in English class, not math class. Forget statistics.
| There is a sense of the word "average" that means "not out of
| the ordinary; common." That's the sense meant here.
| martincmartin wrote:
| Suppose I sell you an oil filter for your 2019 Mazda. When you
| get it home, you realize there's a big hole in it, and it can't
| be used to replace the one currently on your car.
|
| You call me up and I say "I never said it would work in a car,
| I just said it was an oil filter (true) which would fit into a
| 2019 Mazda (true)."
|
| The law says "nice try, you can't be that pedantic. The
| ordinary purpose of oil filters it to actually filter oil in a
| car, so when you sold it, there was an understanding that it
| would work for that purpose."
| dataflow wrote:
| Your example doesn't highlight something important about this
| though: they _explicitly_ disclaim the "implied" warranty of
| merchantability _in addition_ to disclaiming all warranties
| in general. In other words, that means that in your example,
| you hadn 't merely declined to say it works in a car, but you
| had in fact already said "I guarantee NOTHING about this oil
| filter; it comes with absolutely NO WARRANTIES", and yet
| someone would've _still_ called you up and said " _despite
| all your disclaimers_ you _still_ have an implied warranty
| because you didn 't disclaim it explicitly"... which is far
| less obvious than what you wrote.
| fogof wrote:
| What if the oil filter doesn't have a hole in it, but just
| has 10,000 miles on it so it doesn't work well anymore. Would
| selling that be ok? What about a filter with 9,000 miles, or
| 5,000 miles, or 1,000 miles? Who decides what the cutoff is?
| detaro wrote:
| > _Who decides what the cutoff is?_
|
| ultimately, a judge.
| owenmarshall wrote:
| This is where technical people hit a wall with the law.
|
| Many legal systems, especially the American one, aren't
| based on strict enumerable lists of what my lawyer
| friends would call "bright line tests".
|
| This is probably a good thing, all in all.
| mytailorisrich wrote:
| That's because the world is too complex and nuanced for
| such strict cutoffs to be stipulated in law. Just the
| number of products on the market is huge and changes all
| the time.
|
| The law therefore specifies things in general terms and
| uses 'reasonableness', or "fitness for purpose", or what
| would be expected by an "average bystander" (in English
| law), etc. in the same way this piece of legislation
| does.
|
| This allows courts and juries to then make a judgement on
| the infinite number of particular cases that get before
| them.
| danaliv wrote:
| Indeed. And things don't go to court if they're obvious.
| The whole point of going to court is to resolve conflicts
| that don't have obvious answers. (Or where the more
| powerful party is being stubbornly wrong, but that's a
| separate issue.)
| travisjungroth wrote:
| I have had this discussion (argument) with so many
| software engineers and pilots who think they found a
| loophole. If someone in power thinks you broke the law,
| you don't have to explain yourself to a law interpreter.
| It's a human being on the other side of that table. And
| they can be just as clever and capricious as you. Most
| bodies of law also have a catch-all (I like to call it
| "fuck you") clause to cover whatever shenanigans you try
| that they haven't yet enumerated. 14 CFR 91.13 comes to
| mind.
|
| Also, check out my new cryptocurrency that skirts all SEC
| laws. http://orangegrovecoin.com
| torstenvl wrote:
| Average has exactly the meaning it has in all other contexts.
| It seems to be a bizarrely common (and obviously incorrect)
| meme on HN that half of all elements of a set are below
| average.
| phkahler wrote:
| >> It seems to be a bizarrely common (and obviously
| incorrect) meme on HN that half of all elements of a set are
| below average.
|
| When is that not the case? I'll grant you that not all
| distributions are "normal" distributions, so when is it not
| the case that 40 percent are not below average?
| lanna wrote:
| GP comment did not imply that half of elements are below
| average. It just said that _some_ have to be. By definition,
| we cannot have all elements be above average: at least one
| has to be below.
| torstenvl wrote:
| The average (median, mode, rounded mean) package of a dozen
| eggs contains 12 yolks. Occasionally there are 13 or even
| 14. Some packages intentionally contain 24.
|
| Vanishingly few if any contain 11 or fewer yolks.
| lanna wrote:
| With all due respect, you are just trying really hard to
| be pedantic. Your convoluted, contorted, corner-case
| example does not invalidate anything that was said here.
| You even had to resort to the word "rounded" to make it
| work. Without "rounded", most would be below mean.
| betenoire wrote:
| > at least one has to be below (average)
|
| this is the pedantic part. Normal usage of average means
| "pretty much what I expected", which is what they are
| trying to convey, imo.
| tacitusarc wrote:
| I think normally usage, that is non mathematical usage,
| doesn't mean what I expected, it means the middle of
| available options, or perhaps the most common option.
| When applied to quality one would expect that means there
| is low quality, average quality, and high quality. So I
| seriously don't know what this means in a legal context.
| [deleted]
| torstenvl wrote:
| Buying eggs is not a corner case. But buying 12.1 eggs
| certainly is. I think you're projecting a little bit
| here.
|
| In any case, "average" does not mean "arithmetic mean."
| It means, mathematically, any of the median, mode, or
| mean _or_ in standard vernacular, of typical or usual
| characteristics (i.e., close to mode).
|
| You don't get to just arbitrarily pick a definition that
| fits your viewpoint and start going "all due respect" on
| other people.
| a1369209993 wrote:
| > By definition, we cannot have all elements be above
| average: at least one has to be below.
|
| Ludicrously pedantic nitpick: this only applies to finite
| sets - consider the sequence 1,1/2,1/3,1/4,... (the
| harmonic series). The average (mean, median, mode[0]) is
| (depending on _how_ pedantic you want to be) either 0 or
| 0+e[1], but in any case strictly less than any positive
| real number, while every element of the sequence is a
| positive real number.
|
| So it's not true _by definition_ ; it's a consequence of
| the basic sanity constraints that you're working with.
|
| 0: Strictly speaking mode only applies to continuous
| ditributions (ie, with a continuous probability density
| function) or fully discrete distibutions (eg heads vs
| tails), but 0 is the only (real number) x such that for any
| sufficiently small positive distance d, the number of
| elements in x+-d is strictly greater than the number in
| x+-2d but not in x+-d (namely, all but a finite number of
| the inifitely many elements in x+-2d are also in x+-d).
|
| 1: Where e is some surreal number[2] strictly less than any
| positive real number, but not necessarily 1/o specifically.
|
| 2: https://en.wikipedia.org/wiki/Surreal_number
| throwaway8581 wrote:
| This is wrong. See my other comment. The "average" language
| in the UCC provision is referring to a specific notion for a
| particular kind of situation.
| [deleted]
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