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Here is a disclaimer for some open source software.

In no event shall the copyright owner or contributors be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this software, even if advised of the possibility of such damage.

It is my analysis here. I deleted some extraneous words and kept the original meaning.

In no event shall the owner or contributors be liable for damages
and be liable on any theory of liability, even if advised of the possibility of such damage.

How should I interpret: "even if advised of the possibility of such damage"?

A wrote a letter to B.
In the end ,A wrote :
Pls kindly be informed .

Here the action informed was performed by A, not B.

Who advises whom for the possibility of such damage?
Is that means : users were advised of the possibility of such damage by copyright owner ?
The action advise was performed by copyright owner or user of the soft?

  • 1
    Do note that legal language ("legalese") is different from ordinary spoken or written English; many terms or constructions are used because it is known that they will be interpreted in a particular way by the courts. Some may effectively be shibboleths, but only a legal professional is qualified to pronounce on whether a certain plain language summary is accurate. – choster Sep 14 '17 at 13:58
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I have to dissent from Andrew's reading, although it has a certain plausibility.

  1. The passive voice does not obscure who is Agent and who is Patient; it merely assigns these semantic roles to non-canonical but unambiguously fixed syntactic roles. The passive might confuse an unpractised reader, but such a reader's misunderstanding would not carry any weight in litigation.

  2. The plain English sense of the passage does not support this reading. Lawyers are not all as literate as they think they are, but this passage has none of the stigmata of careless composition; and the only Patient in this sentence to which the passive participle advised can be applied is the Subject—the copyright owner or contributors.

  3. The purpose of the entire passage is to shield the copyright owners/contributors from consequences for which they would ordinarily be held responsible, as is emphasized by the contrastive even. But the copyright owners/contributors' advice to a purchaser that the software might injure the purchaser has no such consequence. On the contrary, it would act to mitigate damage—if I warn you that using my software under such-and-such circumstances might blow up your machine, I am far less likely to be held responsible if in fact you use it and your machine in fact blows up.

It is clear that it is the copyright owners/contributors who are advised of the possibility of damage: you can't sue them even if you can show that they knew the damage might occur.

  • +1 - All three points are correct, but especially #1 - this construction is less confusing than most legalese. It is a simple ellipsis: "even if [they have been previosusly] advised of the possibility of such damage." – Adam Sep 14 '17 at 16:59
  • it is the copyright owners/contributors who are advised of the possibility of damage?? In my opinion, it is the copyright owners/contributors who advised of the possibility of damage to users,the action advise was performed by copyright owners. – it_is_a_literature Sep 15 '17 at 4:31
  • @it_is_a_literature No--advised in that syntactic context can only be a passive participle, not a finite verb. The Agent of advised is not given--we understand even if advised [by anybody at all]. – StoneyB Sep 15 '17 at 10:37
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    @StoneyB in this case I say that the use of the passive voice "even if advised of ..." is deliberately ambiguous because it applies regardless of who gave the advice -- the copyright owner, an outside consultant, some guy on the street, etc. I agree that otherwise it's obvious who are the primary affected parties. – Andrew Sep 15 '17 at 14:51
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    @Andrew Ayup. My reading is that the lawyers put the provision in and cross their fingers and hope that a) it discourages the user from litigation and b) failing that, the court (or, more likely, the arbitrator) doesn't hold it to be unconscionable. – StoneyB Sep 15 '17 at 15:20
0

In general, the legal profession loves the passive voice because it obviates the need to specify who is doing some action and who may be affected by it. That way they can apply the language to a wide range of possibilities.

In this particular case the license agreement uses the passive voice to cover more ground. It says that the owners of the software copyright are not liable to the users of the software for any damage the software might cause, (and this is the relevant part) even if anyone tells anyone else exactly how the software could cause damage.

In other words, if I warn you that your software could erase all of a user's data, and you release it anyway, and it actually does erase all the data, this agreement specifies that you are still not liable for that loss. Similarly, if a user is warned that your software could cause damage, and it does, you can't be sued by that user for the cost of the damage.

Would this hold up in court? Eh. It depends on a lot of factors. In the US, for example, each state might have different laws defining what kind of damage a contract can mitigate. Also, because open-source software is generally freely provided, few will pursue legal action because the developers tend not to have much money.

  • Is that means : users were advised of the possibility of such damage by copyright owner ? – it_is_a_literature Sep 15 '17 at 1:25
  • @it_is_a_literature I hope this is for your general English knowledge, and you're not asking me legal advice. Your question suggests that you have trouble understanding this kind of legal English. I don't want to say something you might misunderstand or misinterpret. – Andrew Sep 15 '17 at 3:07
  • Just to learn grammar no related to any legal advice.The action advise was performed by copyright owner or user of the soft? – it_is_a_literature Sep 15 '17 at 4:31
  • @it_is_a_literature If you're just learning, I wouldn't pay too much attention to legal English. It's often deliberately confusing so that only other lawyers can understand what it means. In this case the text suggests that even if the developers warn the user about potential damage, the developers are not liable for the cost of that damage. – Andrew Sep 15 '17 at 14:41

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