licensing disclaimers
What is &quot;tortuous action&quot; in the ISC license?
<p>So, I read disclaimers sometimes. And this one has as a phrase I find amusing...</p>

<pre><code>In no event shall the author be liable for any special, direct,
# indirect, or consequential damages or any damages whatsoever resulting from loss
# of use, data or profits, whether in an action of contract, negligence or other
# tortuous action, arising out of or in connection with the use or performance of
# this software.
</code></pre>

<p>What, exactly, counts as "other tortuous action"? Within what context would that tortuous action clause apply?</p>

<p>In fact, the entire bit about "...whether in an action of contract, negligence or other tortuous action..." seems needlessly specific. Is there any reason they can't simply say "...of use, data or profits, arising out of or in connection with the use or performance of this software."?</p>

<p>It just feels like that phrase is, well, needlessly tortuous.</p>

<p>The author has mistakenly used <em>tortuous</em> instead of <em>tortious,</em> which is the adjective of <em>tort.</em></p>

<p>Couple things to note.</p>
<ol>
<li><p>That's not the real ISC license. I don't know where you got that from, but that isn't it. The <a href="//opensource.org/licenses/ISC" rel="nofollow noreferrer">real one reads this</a>: (emphasis mine)</p>
<blockquote>
<p>THE SOFTWARE IS PROVIDED &quot;AS IS&quot; AND THE AUTHOR DISCLAIMS ALL WARRANTIES WITH REGARD TO THIS SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, <strong>NEGLIGENCE OR OTHER TORTIOUS ACTION</strong>, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE.</p>
</blockquote>
</li>
<li><p>Upper case is actually part of the license.</p>
<p>Caps are used to say that &quot;there is no possible way you couldn't have read that.&quot; Basically, it's a defence: you can't say that you didn't see that part, and broke the license terms. You can read more on this <a href="//opensource.stackexchange.com/questions/13/can-i-change-the-caps-to-lowercase-in-licenses">Open Source SE post</a>. Also, that part is long to cover all cases pretty much. It's common legalese.</p>
</li>
</ol>
