Outstanding bit of legal writing by Kyle Mitchell:
First, “including without limitation” is a legal antipattern. It crops up in any number of flavors:
- “including, without limitation”
- “including, without limiting the generality of the foregoing”
- “including, but not limited to”
- many, many pointless variations
All of these share a common purpose, and they all fail to achieve it reliably. Fundamentally, drafters who use them try to have their cake and eat it, too. In The MIT License, that means introducing specific examples of “dealing in the Software”—“use, copy, modify” and so on—without implying that licensee action has to be something like the examples given to count as “dealing in”. The trouble is that, if you end up needing a court to review and interpret the terms of a license, the court will see its job as finding out what those fighting meant by the language. If the court needs to decide what “deal in” means, it cannot “unsee” the examples, even if you tell it to. I’d argue that “deal in the Software without restriction” alone would be better for licensees. Also shorter.
Read the whole thing.
