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Re: Warranty disclaimers with SHOUTY CAPITALS

Ben Finney wrote:
> Sadly, checking the released version of GPLv3, I see that the sections
> "15. Disclaimer of Warranty." and "16. Limitation of Liability." both
> contain all text in SHOUTY CAPITALS.
> That's disappointing :-( I wasn't aware they'd been reverted from
> readable text. It must have happened shortly before the release.
>>> so the board may want to check their local legal position before
>>> finalising the non-shouty version.
>> If the board reveals something more substantive on the reason for
>> writing disclaimers in SHOUTY CAPITALS than "because that's what
>> everyone says you have to do", I'm sure many people would be
>> interested.
> This still stands. I'm still entirely unaware of what the legal reason
> is.

This is explained in the rationale document that accompanied the third
public draft of GPLv3,
at p. 61, n. 108:

There is authority under United States law suggesting that effective
warranty disclaimers must be "conspicuous," and that conspicuousness can
be established by capitalization and is absent when a disclaimer has the
same typeface as the terms surrounding it (see Stevenson v. TRW, Inc.,
987 F.2d 288, 296 (5th Cir. 1993)). We have reason to doubt that such
authority would apply to copyright licenses like the GPL. Nevertheless,
pending further research, we have cautiously decided to restore the
capitalization of both the warranty disclaimer and the liability
limitation in Draft 3.
[end of quote]


Richard E. Fontana
Software Freedom Law Center

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