5

Update: I've got a response from the FSF on this down in the answers

From the answer to Can I remove all-caps and shorten the disclaimer on my License?, it appears that the APP CAPS sections of a software license are largely to provide extra legal ammo and increase the weight of those sections.

On the flip side, ALL CAPS TEXT is more difficult to read in paragraph form. Furthermore, with formats like markdown, we can provide cleaner alternatives to all-caps "bolding" of text.

So, I'd like to convert (for example) the warranty clause of the MIT license from:

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.

to (markdown):

**The software is provided "as is", without warranty of any kind, express or
implied, including but not limited to the warranties of marchantability,
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.**

Is this legally murky territory? (particularly w/ GPL?)

10
  • I feel that this is off-topic here, but this a very good question, and you should contact the FSF about it. If you could make a reddit thread and post the link here that would be great. Apr 6 '13 at 21:16
  • As far as I know, the caps are just to make it stand out more, because of some silly US law or something. I think bold would be fine. Apr 6 '13 at 21:23
  • 1
    Do people honestly spend more than 3 minutes of their time worrying about these things? Just use the license as is and carry on with the important stuff.
    – tdammers
    Apr 6 '13 at 21:28
  • 1
    a lawyer likely won't have any idea what "markdown" is, and markdown is only one of dozens of markup styles. How are we to know that ** means bold and not superscript or italics or a block quote or ...? Apr 7 '13 at 13:35
  • 4
    @Nevir We do welcome software licensing questions, but they should be questions that somehow require programming expertise to be answered, not legal expertise. Bit of a murky area, and I don't really think you should worry about the closure.
    – yannis
    Apr 7 '13 at 16:27
11

All-caps text is a form much loved by lawyers in legal documents when they wish to emphasize an element. Some elements of a legal document do not take effect unless they are emphasized. A license is a legal document. Don't mess with it.

4
  • +1 for "Don't mess with it." Apr 7 '13 at 1:50
  • "Some elements of a legal document do not take effect unless they are emphasized" is there a source for this? Mar 22 '16 at 22:10
  • 1
    @BenjaminGolder Take, for example, the USA's Uniform Commercial Code. Section 1-201 (b) (10) says: "Conspicuous", with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following: (A) a heading in capitals equal to or greater in size than the surrounding text, or ... Mar 23 '16 at 1:56
  • 1
    To finish that quote, "...or in contrasting type, font, or color to the surrounding text of the same or lesser size", [contrasting type added]
    – Nick T
    Sep 23 '18 at 18:04
9

Some notes from FSF on the subject:

The license states that only verbatim copying is allowed, but historically I believe we have not been concerned about superficial changes. As long as you're not changing the text itself or using wonky formatting tricks to try and deceive users about what the license actually says, it shouldn't be an issue for us.

On why these sections exist:

Those sections are disclaimers of liability and warranties. In some jurisdictions, such disclaimers are only effective if they are made somehow conspicuous. This makes some sense; the disclaimer is meant to put the user on notice that they should be on guard regarding the item, so trying to sneak the disclaimer by them by mushing it in with a bunch of other text (or even making it smaller or harder to read) wouldn't be fair. So they are made all-caps to stand out from the rest of the text. I'm not sure whether bold vs. all-caps makes a difference in terms of the effectiveness of the disclaimer (you'd have to consult a lawyer in the particular jurisdiction you are concerned about), but if I had to guess, all-caps was selected because these licenses are generally distributed in plain text.

2
  • +1 "In some jurisdictions, such disclaimers are only effective if they are made somehow conspicuous." is exactly my point. Apr 9 '13 at 21:39
  • I think one could probably argue that the terms are not conspicuous if (1) they make up more than half the content (e.g. the MIT license), (2) they are not a heading AND (3) they are not really surrounded by dissimilar terms, depending on what "surrounded by" means (probably not "majority of the content").
    – Josh
    Jul 7 '16 at 21:41
1

I disagree with Ross Patterson (but I'm not a lawyer). A legal document is just text, no matter how is it presented. Putting things in bold or in uppercase indicates that this is important and that the reader should carefully read that (funny as it is, writing text in uppercase would have an opposite effect, and people would skip such unreadable sections), but doesn't increase or decrease the legal value of the content.

There is no such a thing as a relative legal value which fluctuates depending on the formatting. Otherwise, every piece of legal text would be in Arial Black 100 bold all caps underlined, displayed in blinking red.

If text in all capitals was "importantly mandatory", what would this mean about the text not in all capitals? Is it "mandatory, but not too much"? Or "mandatory only if you want it to be"? Or not mandatory at all? Nonsense.

Example:

YOU ARE NOT AUTHORIZED TO SELL THIS SOFTWARE PRODUCT AS YOUR OWN.
You are neither authorized to decompile or change it, including for personal purposes like learning.

So, can you decompile or change it? Or maybe you can, but only for personal purposes, despite what is said in the text above? If you can't decompile or change it, what does it change that the text is not in all capitals?

All capitals are generally used in those texts for technical reasons: you can't use bold in .txt files. Replacing all capitals by bold, given that you can ensure that it will always be displayed in bold, makes no difference.

Of course, as indicated in the comments, you should contact (and you had contacted) FSF to have a definitive response.

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  • 8
    First, never apply geek-style logic to the law. Law doesn't work the way you and I expect it to. Second, I can cite specific sections of the Code of Virginia that provide minimum font-sizes for certain notices. It's weird, but it's the law. Apr 7 '13 at 17:44
  • It's not geek-style logic to say that "mandatory, but not too much" is a nonsense. As for minimum font sizes, it has nothing to do. There is a good reason to require minimum font sizes, as it is done to fight against advertisement and any printed material which claims something in large font on the first page, but then, you discover barely visible Arial 6 text at the bottom of the last page, telling something very different. Apr 7 '13 at 17:53
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    Apparently, the Uniform Commercial Code has specific typesetting rules, as well as instructions that certain legal text needs to be particularly "conspicuous". There's an interesting discussion about it on Quora (free login required, sadly). The all-caps thing may be a misguided approach to achieving conspicuousness.
    – Daniel B
    Apr 8 '13 at 9:06
  • That Quora response is probably the best answer to this question :P
    – Nevir
    Apr 9 '13 at 0:37

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