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The well-known MIT (or "X11/MIT" license reads):

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, 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.

Do I really need the long "shouting" warranty disclaimer at the end? And does it have to be in all-caps? Or can I trim/lowercase it?

For many of my projects I lowercase it:

The software prodided "as is" [...]

but I would prefer to just replace it with something like:

The software is provided "as is", without warranty of any kind. In no event shall the authors or copyright holders be liable for any claim.

But I'm not sure if it is "safe" enough to do so ...

Note: I am from the E.U. (Netherlands).

  • Just a clarification, the license you're quoting is the MIT/Expat, not the MIT/X11 one. The X11 version includes the clause: Except as contained in this notice, the name(s) of the above copyright holders shall not be used in advertising or otherwise to promote the sale, use or other dealings in this Software without prior written authorization. – waldyrious Jul 6 '15 at 13:20
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Programmers.SE has a similar question: Can I remove all-caps and shorten the disclaimer on my License?

Tim Post's answer (which he says was derived from advice from a lawyer) says:

  • The caps allow you to say 'no way could they have missed the disclaimer, it is hardly fine print!' This is important in a license or EULA that non-lawyers must read and accept.

  • There is a difference between 'express' and 'implied'. Some areas have laws that allow people to 'imply' a warranty, even though one was not explicitly offered, unless you make certain specifications.

He suggested not making any changes to existing licenses, as that basically creates a whole new (and likely weaker) license...

Changing the text of a disclaim is certainly risky business. Your proposed change, for example, merely says the software is "provided... without warranty of any kind". It is unclear whether that disclaims implicit warranties or only claims the absence of explicit warranties. Implicit warranties are automatically attached to qualifying transactions performed under a jurisdiction that applies them, so you saying, "I don't offer any warranties on this good/service," doesn't clearly "turn off" the automatic implicit warranties that may apply.

As for the caps, there's a bit more hope. This post, apparently by a contract writer says:

For example, section 2-316(2) [of the Uniform Commercial Code (U.C.C.)] states that a disclaimer of the implied warranty of merchantability must be conspicuous. But section 1-201(10) of the U.C.C. specifies that "language in the body of a form is 'conspicuous' if it is in larger or other contrasting type or color"; it doesn’t say anthing about all capitals.

And Amercian General Finance, Inc. v. Bassett, 285 F.3d 882 (9th Cir. 2002), debunked the notion that text needs to be in all caps to be conspicuous. I particularly like this sentence from that case: "Lawyers who think their caps lock keys are instant 'make conspicuous' buttons are deluded."

As a practical example of a non-caps disclaimer, Mozilla is ready to stand by their normal-cased bold-text disclaimer as sufficiently "conspicuous" in their terms of service. That said, I don't see how a plain-text license document (without rich-text formatting) could contain differently-sized or differently-colored text, so capital letters appear to be the best we can do in plain text.

I would also have grave concerns about altering a license document you received from someone else. If you plan to do this, absolutely consult a lawyer. (Actually, if you plan to do anything detailed in this post, consult a lawyer.)

  • 4
    Of course, the best thing about making things all caps to make them conspicuous is that all caps are harder to read, and the additional effort makes people less likely to bother to read them. Arguably, by making the terms harder to read, you're making that part of the terms less binding. But I suppose if legal precedent doesn't agree with basic thinking, your hands are tied. – Parthian Shot Jun 24 '15 at 1:18
  • Equally arguably: by making the terms harder to read, you're making that part of the terms more binding. Because the extra effort needed to read it means that it is more likely to be understood. – jalanb Jul 7 '15 at 15:55
  • I remember reading that ALL CAPS were a way of ensuring the pertinent parts of a legal text remained "conspicuous", as there was no risk of certain words losing their formatting when transferred between mediums (such as quoted in an e-mail or forum post). Having said that, it IS annoying, not to mention it poses an accessibility concern for screen-readers. Using text-transform: uppercase; for such passages is always a good idea. – user5020 May 21 '16 at 14:05
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Yes, you need a strictly noticeable presentation of the disclaimer paragraph in order for it to fulfill the legal definition of "conspicuous" text. For plaintext, this means YOUR ONLY WAY IS ALL CAPS, but if your license is not in plain text, you can learn / copy from the Bandcamp Terms of use:

[...] you won't find any 8-point type, or long sections of TOTALLY UNREADABLE ALL-CAPS intended to fulfill the legal definition of "conspicuous" (we're pretty sure Your Honor will accept yellow, bold text instead)

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    Do you mean that it has been legally determined somewhere that the only way for plain text to be considered "conspicuous" is all caps? Can you cite any sources if so? I'm sure there's more than one way to make a block of plain text conspicuous, in everyday terms. – Dan Getz Jun 25 '15 at 18:17

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