software tort warranties lemon-law ucc
Can I viably sue for damages caused by bugs in freeware?
<p>Freeware is software released free of charge. Often times freeware is written by a hobbyist or academic who is looking to create a tool for their field, but is either not interested in profit or thinks that profit is not viable.</p>
<p>I know that in some states, such as in Virginia, freeware comes with &quot;no implied warranty&quot; as per § 59.1–504. But does that include no warranty against damages caused by buggy code? And is this issue still a state by state issue or is there a general guiding principle which would govern the issue here?</p>
<p>Since it is required to help answer the question, we'll assume the following.</p>
<p><strong>License</strong>: MIT License</p>
<p><strong>Jurisdictions of Interest</strong>: New York &amp; US Federal Statues/Practice.</p>
<p><strong>Note</strong>: <em>I am excluding the obvious cases of gross negligence or maliciousness, such as including a virus in the code. Likewise I am excluding third party injury where the actions of the software cause damages to individuals who are not using it.</em></p>

<h2>No, you can't</h2>
<p>The last paragraph of the <a href="https://en.wikipedia.org/wiki/MIT_License" rel="nofollow noreferrer">MIT License</a> explicitly says the author is not responsible for damages (emphasis mine):</p>
<blockquote>
<p>THE SOFTWARE IS PROVIDED &quot;AS IS&quot;, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. <strong>IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY,</strong> WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE
SOFTWARE.</p>
</blockquote>
<p>A software license is not a contract.  You didn't enter a contract with the developer or team.  You found software online and decided to use the software.  When you install paid software you are almost always presented with the EULA and check-box saying you agree to it.  You took an action and agreed to the EULA.  You didn’t have to agree to anything before getting access to the code under the MIT license.</p>
<p>The software is offered <strong>&quot;as-is&quot;</strong> which is further protects the author.  You'd have to show the author convinced you to use the software fraudulently.  You're unlikely to talk to the author at all, and since the entire source code is available for review, it would be very difficult if not impossible to claim fraud.</p>
<p>Finally, in the U.S. people have been sued using the <a href="https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act" rel="nofollow noreferrer">Computer Fraud and Abuse Act</a>.  None of the notable cases involve embedding a virus in an open-source project.  Of interest is how the CFAA defines a virus (emphasis mine)</p>
<blockquote>
<p>(A) <strong>knowingly</strong> causes the transmission of a program, information, code,
or command, and as a result of such conduct, intentionally causes
damage without authorization, to a protected computer;</p>
</blockquote>
<p>Simply writing bad code wouldn't be enough.  You'd have to prove the developer acted maliciously.</p>
<p>Hobbyists working for free don't usually have much money.  The other major contributors to open source are large companies like IBM and Google, which have lawyers on retainer and deal with frivolous lawsuits frequently.</p>

<p>In addition to the argument that that particular license contains a disclaimer of liability as a condition of the license grant, you have no privity with the author.</p>
<p>The license binds your use of the software, but you have not entered into a contract with the author.  A contract requires mutual consideration; so because you didn't pay for the license you are a just some random stranger who copied the author's work.  The author has no contract with you, and no duty to you that could form the basis of a suit.</p>
