This could turn into a real legal test for FOSS licenses!

Merchantability seems to be the root issue here. This action by Marak Squires (maintainer of the projects) would ordinarilly be illegal by way of breaking the law on implied merchantability: The 'product' (faker.js and colors.js) that the 'vendor' (Squires) supplies to its customers (users of the package) is intentionally designed to be not at all fit for the purpose that it is 'advertised' as.

it's like a bakery selling objects that look exactly like bread, but which aren't edible. Even though the shop does not _call_ any of its products 'bread' - the look of the store and the name of it, as well as its reputation as having been a bakery before, implies it. Calling something 'bread' implies it is edible.

The interesting snafu is two-fold: FOSS license, and a more fundamental issue. The FOSS license attempts to disavow an implied right, and does so in a license that does not require acknowledgement of the 'buyer'. A casual analysis would indicate that a FOSS license is therefore laughably unenforcable: Of course you can't do something as fundamental as denying an implied right without clear explicit acknowledgement from the other party, let alone via a license that's buried 5 pages deep into an About... dialog someplace.

On the other hand, FOSS is free, so the 'buyer' would presumably be expected to realize extraordinary rules attach to their 'purchase'.

Or better yet, perhaps it is better to stop couching this in terms of 'product', 'vendor', and 'buyer'. If you paid nothing, are you a 'buyer'? If this isn't a transaction then you aren't a merchant and therefore merchantability cannot apply. (In this sense, all FOSS licenses mentioning merchantability is in fact __reducing__ the legal protections of FOSS authors! By using that term you're, yourself, construing the relationship between the FOSS author and the FOSS user as a vendor/buyer relationship! But, I'm not a laywer, so I best put this pet legal opinion back in the shed where it probably belongs).

At any rate, however FOSS is supposed to imply non-merchantibility (be it the license, or simply that you never paid for it, or some combination thereof): That would, I think, be __required__ for this act to not have been illegal.

Once it's illegal, github's actions are entirely justified. If it isn't legal, then github's / npm's actions of taking over the 'project' is more dubious, though I'm pretty sure the github agreement gives them the right to do this.

And if you think that github cannot just claim this right via a clickthrough license.... github is __free__. If github can't claim this right via a clickthrough, then Marek's claim that he isn't on the hook for a merchantability promise seems doomed, making it illegal, making github justified yet again.

Turn left or turn right, github was allowed to do this. Whether it's 'moral' - oof. That requires beers and a long night I think.

I think it's a test of the FOSS license. If a bakery decides to bake their bread intentionally with extremely foul smelling chemicals (harmless, other than that it makes the bread test utterly disgusting), even if they announce it on their facebook page or what not, that's not just unethical, that is illegal: There is an implicit merchantability and all that.

It seems to be rather obvious that a software product that implies that it does a certain thing (and whether you go by its name, its description, or simply by the fact that it did that thing before the update, a thing that is well described and that the author is clearly aware of, is making no efforts to correct, and is in fact contributing to by e.g. exposing documentation that echoes this) - and then it intentionally doesn't do that thing, is breaking the same law.

However, the FOSS license explicitly denounces this, which you ordinarily cannot do, but backs that up with: Well, ordinarily, you'd be paying something for this, and you're not, so even implied merchantibility. It does this in a worse-than-click-through style license (you do not need to explicitly acknowledge a FOSS license).

Ordinarily (and I am not a lawyer), I'd say the license style of FOSS projects is obviously stupid: You can't write an extreme license (and 'disavowing merchantibility certainly is extreme!') and do so in such a roundabout way as a file buried in some about page someplace. However, the rub is: You don't pay for FOSS, and the concept of FOSS itself (including disavowing merchantibility) is somewhat well known. One could make a plausible claim that 'buyers' can be expected to either know what FOSS is, or at least that the literal zero cost surely means it comes with caveats that are extraordinary.

Perhaps there's no need for FOSS licenses. If you don't pay anything, can you impose duties? US law (and many other country's laws) do this all the time, but for this specific case: Treating someone who puts a FOSS project online as a 'vendor', who therefore implicitly adopts the duty of providing a merchantable product (which they then attempt to get rid of via the license; for the purposes of this defense, lets assume that FOSS licenses are not legally binding, so it applies) - that's weird, right? The 'buyer' isn't a buyer; they did not pay.

I'm in fact tempted to think that FOSS licenses __reduce__ rights; by having that license and mentioning merchantability you've construed your relationship as FOSS author with the FOSS user as one of vendor and buyer.

But, I'm not a lawyer, and the OSI and the lot are, so I should probably defer to their judgement, perhaps? Then again, a lawyer is somewhat unlikely to get behind the notion that 'no legal documentation is the best solution here, let common sense dictate and pray instead'. What being lawyers and all, even the good persons.