Washington Supreme Court Upholds Shrinkwrap Licensing 253
rudedog writes: "According to this Seattle Times article, the Washington Supreme Court has upheld a shrinkwrap license limiting recovery of damages due to buggy software. Apparently, the software manufacturer agreed that there was a bug that cost the plaintiff $1.95 million, but asked the court to dismiss the claim based on the license agreement [which disclaimed all liability]. Kinda answers the old open source FUD question 'who you gonna sue if something goes wrong?'. According to the WA courts, nobody." The opinion is available here, and a dissenting opinion by two of the judges is also available.
Dissenting Judges Make Good Point (Score:1)
This is really a bad win for the software industry.
Re:Republicans would be proud... (Score:2)
They *are* getting it, exactly the way they want it. Remember, they don't care about us consumers - they only have to satisfy us enough to pry the money out of our pocket, so they can keep their shareholders happy. That means the software has to be just good enough, and no more.
...phil
Re:What about the GPL? (Score:2)
Actually, I have to disappoint you here. I may have a problem with the balsa child seat, because of the inherent consumer sovereignty problem - the parents buy it but it's the baby who dies if it's hosed. A baby shouldn't be punished for its parents idiocy. The soup, OTOH, is fine with me. Read the ingredients - if botulin's listed, that's a no-no. If the press does its job, they'll never sell a can of the stuff and the whole thing will be a total loss in business terms.
Laws against that sort of thing were made in a time of widespread illiteracy and scientific ignorance, and information sharing was virtually nonexistent. Those conditions no longer hold. Nearly everyone today has access to unlimited information and the capacity to interpret it.
Re:What about the GPL? (Score:4)
Yes, absolutely! GPL or multi-million-dollar proprietary patentware, doesn't matter. I don't believe in product liability. If you want a warranty, buy one. Consider it insurance. If someone wants to offer you a warranty, that's fine, but nobody should have to. There's no hypocrisy involved here. I agree with the court's decision.
That said, I think the decision is great for Free Software. We don't offer a warranty, neither do the big guys. If you're not going to get a warranty, you might as well go with something that's used by the guy who wrote it and costs nothing. It's one less thing for PHBs to like about non-Free software (as the poster mentions, the "whom do we sue?" attitude).
In fact, I hope we see more like this. I don't want any proprietary vendor held to answer for its products, nor do I want any term of any license, proprietary or otherwise, declared invalid. Go UCITA! Let the big software houses fuck themselves up the ass. Carry it to the logical conclusion - lay bare the true motives of the megacorporations by letting them do business as they like. Once everyone realizes that they won't stand by their products and don't give a shit about their customers, it'll be that much easier to justify the decision to abandon proprietary software. Force people to read and follow their licenses instead of letting them hide behind the shield of the law.
In an environment where the license is written in stone and backed up with the force of law without appeal or mercy, a software package's terms of use become very important criteria indeed. So much the better for those who distribute their software under more agreeable terms.
Example: Microsoft (Score:2)
"You must accept the
enclosed License Agree-
ment before you can use
this product. If you do not
accept the terms of the
License Agreement, you
should promptly return
the product for a refund."
Of course, it also says on it:
MONEY-BACK
Microsoft
30-DAY
GUARANTEE
...and it has no information on how to return it.
Well, since I don't use Windows, I'll try to find a way to return it within 30 days, and maybe get some cash.
But could someone explain to me how I can agree to something without ever seeing it, and later when it breaks get told "It's your fault, by opening the package, you waived all your rights..."?
Ah well. I don't think the GPL has adopted *that* clause yet, so I'll continue on my merry way...
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pb Reply or e-mail; don't vaguely moderate [ncsu.edu].
Re:So what software should be liable? (Score:2)
And there's the review process known as the Free Press that spreads far and wide when a piece of software is a stinking disaster (i.e. the hue and cry over AOL 5.0).
True for now, but some EULAs specifically disallow review without consent.
Re:GPL, Rights, Contracts, and Bagels (IANAL) (Score:3)
The implicit "right" to warranty isn't out of nowhere; it's part of the default-contract provisions of the Uniform Commercial Code (UCC) -- you know, that thing that's getting modified as states adopt UCITA. These provisions apply to commercial transactions unless they are overridden by other terms agreed upon by the parties to the transaction. Every commercial transaction, after all, is a contract.
Now, I don't know about you -- maybe you buy packaged distributions -- but I don't engage in commercial transactions in order to get my hands on GPLed software; I download it from Debian. Therefore, there is no commercial transaction going on; hence UCC does not apply; hence there is no implied warranty. The GPL no-warranty language is largely for show or for clarification, like a lot of the language in EULAs.
Even if you do get your GPLed software in a commercially-packaged GNU/Linux distribution, you are not entering contract with the individual authors of the software, but with the distributor. (You aren't buying Apache from the Apache Software Foundation; you're buying it from Red Hat.) Hence, if there is any implied warranty under UCC, it is between you and the distributor. And the distributor can disclaim that warranty by specifying other terms to the contract -- which the Washington case under discussion holds that it can do via a shrink-wrap agreement.
So, in other words, if Apache explodes, you may be able to claim warranty from Red Hat (if you bought it from them), but you can't claim warranty from Apache. Further, you can't even claim warranty from Red Hat in the state of Washington if they have a warranty-disclaiming EULA-style "agreement".
GPL, Rights, Contracts, and Bagels (IANAL) (Score:5)
Microsoft's "End User License Agreement" assumes that before you agree to it, you have no right to use the software. The EULA, therefore, is phrased as a "license" to use the software. GPL, on the other hand, assumes that you already do have the right to use the software; what you lack, due to copyright law, is the right to redistribute it. The GPL, therefore, is phrased as a license to distribute the software, under certain conditions.
You'll note that you don't have to click on the GPL in order to be bound by its terms when you redistribute GPLed software. Why? Because the GPL is not a contract. The GPL is solely a license. In fact, the GPL clearly states that you do not have to "agree to" it; if you don't want to obey its terms, that's fine -- but if you do disobey its terms when distributing GPLed software, that distribution is a violation of copyright. You may obey the GPL's provisions when redistributing GPLed software, in which case you are within your rights, or you may violate its provisions when distributing GPLed software, in which case you are breaking the law.
(Note, if you will, the difference between agreeing to something and agreeing with something. The latter is an expression of opinion; the former is a declaration that one consents to be bound by a set of terms. Note also the difference between agreeing to something and obeying it. You don't need to agree to the laws against copyright violation in order to be penalized for not obeying them.)
In contrast with GPL and related licensens, proprietary EULAs aren't licenses at all; they're waivers masquerading as contracts. In exchange for the dubious "right to use" the software, they state that you must agree to waive certain rights you would otherwise have. By clicking on the little "I Agree" button, you thereby (supposedly) waive those rights in exchange for the "right to use".
But there is no "right to use" -- or rather, the right to use is inherent in legitimately-granted access to the software.
Consider: If I operate a college computer lab, I grant access to the computers in that lab to any number of students who have not clicked on any "license agreement". What grants these students the "right to use" any proprietary software that may have been (legitimately) installed on that computer? If one has to agree to an EULA to have that right, then those students, not bound by any EULA, are just as illicit as any warez d00d.
My interpretation is that what grants the students the right to use the software is the fact that they came by it legitimately -- that the software was legally installed on the computers (i.e. it was not "pirated") and that they had the right to use those computers.
Similarly, if you legitimately come by a piece of proprietary software -- say, by purchasing a CD containing it in a store, or downloading it from the manufacturer's Web site -- then you already do have the right to use it. You don't have to agree to anything. Go ahead and unzip Microsoft's Kerberos documentation with WinZip, Stuffit Expander, or unzip(1), instead of running the self-extracting archive and seeing the bogus "trade secret" EULA. You already have the right to use it within if you downloaded it legally. (You don't, however, have the right to redistribute it without a license to do so. That's copyright law.)
===
A Parable on Licensing:
Imagine, if you will, that I own a bagel shop and you purchase from me one bagel. You leave my shop; I follow you to the park, where you plan to eat the bagel. Before you take a bite, however, I exclaim: "By biting into that bagel, thus making use of the intellectual property of its recipe, you agree to waive your right to sue me if it contains radioactive waste, cyanide, or dead roaches! I do not grant you permission to eat that bagel unless you agree to these terms!"
Assuming that you do not immediately become disgusted and toss the bagel in my face or the trash can, does your biting into the bagel create an agreement between you and me? Of course not. Did you need my permission to eat the bagel? Of course not. You already had the right to eat the bagel, as you came by the bagel legitimately -- by buying it from me, its creator.
(Little hint, though: You shouldn't buy bagels made by people who want you to waive your right to sue if they contain radioactive waste.)
Re:I want a GCL (Score:2)
Better yet, write up a GCL, take a sheet of those colored dot labels and print GCL on each one.
Then when you go shopping, if you think something is going to have a license you don't like, stick a GCL sticker on it before you get to the register.
Now you've modified the license agreement, sticking your proposed changes (by reference) on the box, where they are even easier to see than the leftlet inside or the software click-through license
You take it to the register and offer to buy it with the modified terms, which you fail to mention to the check-out drone, in the same way that the check-out drone fails to mention the original license agreement to you.
They sell you the product, you've got the product with the modified license.
Re:Proximity to Redmond (Score:2)
While I don't think that MS buys off every judge in the state, they have an exceptional amount of influence in King County and WA in general. As for love, people love MS only because 1) they own stock 2) they work there. Can't say I can think of a whole lot of people who like 'em because of their 'quality' products, 'ethical' business practices or 'humble' attitudes.
I will grant you though that WA politics stink. I'd love nothing more than to run them all out of office at city, county and state levels and get some people in there who view themselves as civil _servants_. It would be a refreshing change.
Re:So what software should be liable? (Score:2)
You (I'm using the theoretical, general sense of the word) can bootstrap-install any of the Linux distributions from source tarballs, source RPMs, etc with nothing but a C compiler capable of compiling gcc... but I wouldn't want to.
And I don't see the point. The current statement of most software vendors, "Here's some binary code you might be able to run," seems almost equivalent.
So what software should be liable? (Score:4)
So how much does a software owner have to charge for a license before they have to be liable for any and all damages caused by someone using it?
Even software makers who are willing to put their money where their mouth is usually give a list of medical, nuclear, etc. applications where that liability doesn't apply. If some idiot tries to put embedded NT into a life support system, should Microsoft be liable when it bluescreens?
Re:Example: Microsoft (Score:2)
"You must accept the enclosed License Agreement before you can use this product"
...which would seem to me to mean that you can open the box, just not use it. In cases like this, usually the software itself is enclosed in a little pouch with the licensing terms on it. You read the license, then open the pouch if you don't have an objections. That way you can prove that you didn't run the software.
- Jeff A. Campbell
- VelociNews (http://www.velocinews.com [velocinews.com])
Re:Proximity to Redmond (Score:2)
Sometimes I'm surprised that we haven't been accused of having a role in the 1980 eruption of Mt. St. Helens!
---
Don't you dare try to deny it, either.
(I live down-wind from St. Helens)
:>
- Jeff A. Campbell
- VelociNews (http://www.velocinews.com [velocinews.com])
Re:Moderate him up, please. (Score:3)
According to all the case law out there dealing with shrinkwraps, Sears could get away with this, and would have the right to sue you if you misused "their" hammer.
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Right. At which point, you walk out the door and buy a hammer elsewhere.
As consumers we vote with our pocketbooks. If an item - even software - doesn't have the license you want, don't buy it. It's 100% the consumer's fault if they purchase something with full knowledge of its license terms and decide that they didn't care for the terms they agreed to. It's not Company XYZ's fault if I'm too stupid to complain and demand something better.
- Jeff A. Campbell
- VelociNews (http://www.velocinews.com [velocinews.com])
Re:Dumb..... (Score:2)
Because you "agreed" to a "contract" absolving the vendor of all liability.
Oh, and you don't own your software, either. You gave title back to the vendor when you "agreed" to the "license."
Schwab
Re:GPL liablity Under UCITA.... (Score:2)
Shrinkwraps constrain use; the GPL constrains redistribution. An analogy:
GPL: "As lawful posessor of this software, you're free to do anything you want with it. Because it's copyrighted, you can't make/distribute copies. However, if you agree to these terms, we'll implicitly grant you a license to make and distribute copies."
Typical shrinkwrap: "You must agree to give up ownership of this software, to not sue us, to not reverse-engineer the software, and anything else we can think of, or you can't use this software at all."
Which contract is the product of the more mature mind is left as an exercise for the reader.
Schwab
Re:It already works that way sometimes (Score:2)
That's a bit different from the scenario I described. In your scenario, you're free to use the UL-tested outlet in a hospital, and no one will try and sue you for breach of "contract."
Schwab
Re:It already works that way sometimes (Score:2)
Yes, it's closer, but that contract is negotiated and signed before you cut the check and get your hands on the laser system. The same is not true for software purchases.
I don't object to licenses per se. What I'm objecting to is the attempt to apply them in the context of a retail purchase of goods, a situation where consumers don't expect "weird things" to happen.
Schwab
Re:Moderate him up, please. (Score:2)
Again, I challenge you to find a piece of commercial closed-source software, for sale over-the-counter, that does not come with a "license" attached.
You're arguing that the consumer can vote by spending their dollars elsewhere. I contend that this scam is so widespread that, for all practical purposes, there is no "elsewhere;" no meaningful choice exists for the consumer.
Schwab
Shameless Plug (Score:3)
Once again, allow me to shamelessly plug my editorial putting the case against shrinkwrap "licenses" [best.com].
There is, sadly, a ton of case law supporting this garbage. This despite the fact that the crushing majority of people in the US alone have no idea what a shrinkwrap "license" is, let alone the specious legal reasoning on which they stand. Thus, while the law may be on their side, I believe public opinion can be marshalled to our side fairly easily, since the ethical issues and "common sense" are fairly clear here.
Start telling your friends and neighbors about this stuff, especially if they are not computer-savvy. It's the newcomers to the digital realm who stand to be screwed the most by this.
BTW, striking down shrinkwraps as unenforceable would not affect Open Source licenses (GPL, BSD, etc.). Shrinkwraps operate off an entirely different principle.
Schwab
Informative Site (Score:3)
Interested observers should check out Cem Kamer's Bad Software Web site [badsoftware.com]. In particular, you'll want to read up on the court cases [badsoftware.com] testing the provisions of shrinkwrap licenses and other contracts of adhesion. It's pretty depressing.
Schwab
Moderate him up, please. (Score:5)
Underwhelm discusses the very issues I've been beating on for the last ten years: Shrinkwraps are a harbinger of much more evil practices yet to come. One hypothetical situation in my parade of horribles (hi, Andrew!) is the following:
One day, you walk into Sears, and find all the hammers are gone, having been replaced with two hammers: the Craftsman(R) Personal Hammer, and the Craftsman(R) Enterprise Edition Hammer.
Both hammers come in a box with a "license" printed on it. On the Personal Hammer, the license says that you can only use the hammer for personal projects, home repairs on your own home only, etc. In particular, the license forbids you from selling/profiting from anything you use the hammer to build. On the Enterprise Edition Hammer, you are allowed to use it to build stuff for sale, provided you give to Sears 1% of the gross sale price of objects the hammer was used to build.
The Personal Hammer is $35.00; the Enterprise Edition Hammer is $550.00. In all other respects, the hammers are absolutely identical .
According to all the case law out there dealing with shrinkwraps, Sears could get away with this, and would have the right to sue you if you misused "their" hammer.
Some would argue that Sears should be able to get away with it; they should be free to offer their products under any terms they choose, and if you don't like them, you can shop somewhere else. If this argument has merit, then it should be possible to purchase software under different terms.
I challenge anyone here to produce a shrinkwrapped box of closed-source software (a Linux/BSD distro doesn't count) that doesn't come with a "license." Games used to be free of such instruments; sadly, this is rapidly vanishing. Thus, the choice of alternate terms for commercial software, in practical terms, does not exist.
I believe this is an extremely bad state of affairs, and must be corrected.
Schwab
Re:GPL, Rights, Contracts, and Bagels (IANAL) (Score:5)
Um, actually, according to the courts, no it isn't.
I was recently informed of this by a Slashdot post made by 'werdna' a few weeks ago, who provided the exact citation (and which I can't dig up at the moment).
Apparently, the "logic" goes like this: In order to use software, you have to load it off disk for execution. In the process of doing this, you are making a copy of the software, from the disk to memory. According to the courts, this is an infringing copy or derivative work which is not covered by Fair Use. Thus, loading a program into memory in order to use it is illegal unless the copyright holder expressly grants you a license to do so. Hence, the shrinkwrap. This decision has evidently been upheld by subsequent courts (perhaps Andrew will chime in with the legal citation again?).
Yes, this is complete idiocy, and needs to be fixed in a big way. (One wonders what color the sky is where these guys come from.)
Schwab
One difference (Score:2)
With GPL'd software, at least what you get off the web, you haven't entered any ambiguous contract up front - the smart web pages say, right there on the download page, "NO GUARANTEES" so I don't think there's any real grounds for a suit.
At least that's how I read it. Or I could be completely wrong.
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buying elsewhere (Score:2)
If you stick with this as an analogy, there are no hammers available on different terms. You'll have to build your own. Or, you'll have to wait for a bold hammer manufacturer to step forward and just sell a "hammer" for a reasonable price and without a license, and then hope that he'll survive the first round of lawsuits from people who smashed their fingernails...
Disclaim Warranty *before* the Sale (Score:4)
I thought I'd take a moment to refute a couple of (I think) fallacious arguments that I see a lot of people making, namely: "We have to allow software to disclaim warranties, or it will be swamped by lawsuits," and, "The GPL (along with every other free software license) disclaims warranty, so isn't it just as bad?"
The answer to these points is that you should be perfectly allowed to disclaim warranty and make other conditions, but you must do so before the sale, like in any other industry.
Every other industry is required to put prominent "sold as-is, no warranty" signs up in the store for this purpose--why can't software? They would get to disclaim warranty, and consumers would know exactly what they are getting into.
With free software, you can examine the warranty before you buy because you typically download it for no cost. On the other hand, I think that vendors of commercial Linux distributions and so on should be required to disclaim warranty, and in general make the terms of the sale clear, before any money exchanges hands.
Unfortunately, it looks like the courts aren't siding with consumers and common sense on this one. Even the dissenting opinion here accepts that post-sale shrinkwrap licenses in consumer transactions are valid--they only objected because here the buyer pro-actively proposed a "contract" (a purchase order) that was accepted by the vendor.
I am not a lawyer, this is not legal advice, without even the implied warranty of merchantability or fitness for a particular purpose.
(By the way, the other terms of free software licenses, like the GPL's terms for derived works, are different from a warranty disclaimer or a shrinkwrap license. You are free to not accept them, but in that case you go with the default under copyright law: you can't distribute copies or modified versions.)
What about CD/DVD players? (Score:2)
Maybe we should file a lawsuit against Sony, Philips, Pioneer et al for DMCA violation in their player devices.
I'm *really* glad that Italian law forbid these kind of stupid things. Things here are far form perfect, for example 10 years ago M$ was able to 'pass' a software protection law that basically was their EULA at that moment. Too bad (for them!) that that law is in contrast with HALF the italian property law, and no one ever attempted to file a lawsuit using it. And just to specify: Italian property law says that if you BUY something, then you can do with it a lot of things.
Ciao, Rob!
Re:They made the right decision, didn't they? (Score:3)
In this case, the shrink-wrap license appeared *after* the contract was made which substantially alters the contract.
The truly remarkable thing is that the majority even accept that the vendor installed the package and the end-user NEVER EVEN SAW the shrink-wrap license.
But to address your concern: yes, small software vendors *can* disclaim liabilities, but they must do so when the contract is made and not after they ship the product...
Re:PBS comes to mind (Score:3)
A new car may have parts that fail during the warranty period. That isn't unusual. However, if the car is in the repair shop more than it is on the road, the dealer and manufacturer have a responsibility to remedy the situation.
There are implied warranties of merchantability and fitness for the intended purpose. Vendors should not be allowed to disclaim these warranties. Any claims made in advertising about features and performance should be legally binding on the vendor. It is disingenuous to disclaim all warranties and simultaneously market the product as a cure for all ills.
I hate the concept of shrink wrap licenses. Unfortunately, there is a precedent in those contracts that are printed on the backs of sports, entertainment and airplane tickets. Those have all been upheld in the courts.
Re:QPL (troll) (Score:2)
(Not that this changes -current- widespread practice, just saying it isn't entirely universal and could shift if corporations see the value.)
--Parity
Re:Caveat Emptor prevails?! (Score:2)
IMHO, the liability of the software manufacturer should be limited (or be able to be limited) to the purchase price of the software in question. The message here is a simple one: You make crappy software, you make no money. You make good software, you reap the benefits.
That's just insane. Why should the rules so far as liabilty be any different than in any other industry? Admittedly, not all brick-and-morter laws apply to the Internet and the software industry, but in this case, they should. If a contractor builds a building that collapses and, although it kills no one, destroys $1 Million in equipment, they should be liable for it. If a software company makes a product that can't do math, they should be liable for the results of the missed math.
We do need to rethink the laws that we mindlessly apply to industries in which it has no place, but this isn't one of those applications.
-Jer
You get what you can sue for. (Score:2)
The problem with the software industry is that it promises but does not deliver. If you say "it will do xxxxxxx" then it should. If you sell me a new car that you say does "xxxxxxx" but does not deliver then I can return the car (In the state of California). If you build a building and it cracks or falls or I can not have people on certain levels, then you are responsible for the building. What people have to realize is that a software product is a REAL product. It is what people run businesses on, like buildings or cars.
Caveat Emptor prevails?! (Score:2)
1) Breach of contract on the part of the seller. The seller states that a product does things A, B, and C. The product does A and C well, but loses a customer big money when they try and the product fails (repeatedly) to do B.... If this were ANY other product, it would constitute false claims about the product and would open the seller/producer to legal consequences.
But NOT in the case of software...
2) Caveat Emptor.
But should this wreak havoc on the shareware industry? I don't think so. The product hasn't caused irrevocable physical harm to anybody. The fault here was not only on the part of the software writer, but on the users of software. If I buy a calculator and it tells me that 5 + 3 = 9, and I use that answer....who's to blame? Sure, the calculator maker provided me with a bad product, but I also used its answer without double-checking my results.
IMHO, the liability of the software manufacturer should be limited (or be able to be limited) to the purchase price of the software in question. The message here is a simple one: You make crappy software, you make no money. You make good software, you reap the benefits.
Scott
Broadbase and narrowbase licensing (Score:2)
certainly if you are subcontracting some software development you want it in writing that there will be no bugs, or a specified number and impact of such bugs, and who will take care of those bugs...
as far as more broadbased software (like Linux, Windoze, MS Office) this isn't a bad thing necessarily... otherwise software companies (and the FSF) could get sued into the ground!
Re:Or perhaps it might... (Score:2)
The issue with linking is not that it's modifying, but that it is is creating a derived work from the library. Or so says Elder God Richard M. Stallman. I have serious doubts.
I can see where static linking makes a derived work out of a main program and a library, because the code in the library gets replicated into the executable image.
However, dynamic linking works completely differently! When a program is dynamically linked to a library, some information is placed in the resulting executable as to what library files need to be accessed. No portion of the library code is placed in the executable image. Why is that creating a derived work from the library?
Finally, what about programs that use dlopen()? The library code isn't even loaded until that segment of the executable code is hit -- how could that be a "derived work"?
If someone can give me a reasonable explanation of this, I'll be happy to accept it.
Re:So what software should be liable? (Score:2)
I honestly think the safest policy for GPLware would be to ship it as source code only, saying "Here's some code you might be able to make an application out of."
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Re:Woah! (Score:2)
I think there is a lot of variation in the basic laws from state to state within the USA. IIRC there are even some places where you can explicitly sign something waiving your rights to sue, and then sue anyway, because the state sees it as an inalienable right.
Personally, I think it should be inalienable. Yes, the tort system is frequently abused, but it also serves a purpose. You hear about the high-profile abuses all over the media, but you hardly ever hear about the day-to-day check & balance role it plays.
I think other rights should be inalienable, too. Certain things employers and landlords always want you to sign, you should be able to sign with impunity and then laugh at them when they try to enforce it. Also free speech issues, e.g. if KM did in fact agree not to work or even talk about anything in the IT field, he should have constitutional protection that lets him sign the deal and then tell them to fuck off.
A right that is not inalienable isn't much of a right.
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Re:So what software should be liable? (Score:2)
I suspect it would, though you never can tell until you actually have a court ruling.
Notice that I'm not outright advocating that strategy, at least not yet. It's something to be thinking about, though.
Especially if, as some claim, the ultimate effect of UCITA will be to let shrinkwrapware off the hook and still leave GPLware exposed to litigation.
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Re:So let me get this right... (Score:2)
Yep. If you land a $100,000,000 contract to provide a big corporation with all its software needs, you just spend a minute knocking out a "Hello World" program and ship it.
When they complain, you say, "Sure, there are some bugs in it, but a deal is a deal. And I even came in ahead of schedule! Pay up."
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Re:So what software should be liable? (Score:2)
I pretty much agree, although with some reservations.
And here's why I agree. Imagine going into a computer store, picking up a shrink-wrapped office suite, and reading the fine print on the box:Or something like that. So you read it again and then you mentally babelfish it, and you get something like:Sorry, but there is something seriously wrong with this picture.
BTW, you make lots of good points in your post.
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Re:consumers and shrinkwrap licenses (Score:3)
I'm inclined to agree. However, there should be some ground rules, e.g., you have to be able to see the full text of the license before you buy, the license cannot protect the vendor against malicious acts, the license cannot make you waive certain really basic rights, etc. (OK, maybe there wouldn't be much left after I got through with it, but these are the kinds of thing society needs to be thinking about.)
Good post; nice observations about warranties and stuff. Maybe that's how things will shake out from the free software movement: you want a warranty, you pay, otherwise you download it for free. Might not be such a bad model for the IT economy.
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Limiting liability to purchase price (Score:2)
Obviously, I write it off as a business expense!
This is an extreme case, but my view is that limiting liability limits responsibility.
Re:So what software should be liable? (Score:2)
Making _all_ software manufacturers liable for _any_ damages resulting from _any_ use of their software would be ridiculous, clearly. For example, look at Windows 98. It's clearly marketted as a consumer operating system rather than an ideal solution for that mission critical server. Run it as a server and you're on your own. But run it for your games, Internet and letters to the family and you can reasonably expect it to work. If, in the course of this work, it causes you substantial damages somehow, Microsoft should be liable.
Over here in the UK, the principle is that of the reasonable man. Would a reasonable man expect something to work in such a way? If something is advertised as being the ideal solution for your business - or whatever - then you have a right to expect it to work. If I run NT and Office Professional (for example) I should have a right to expect that a competently set up and administered box running on good hardware is suitable for general office tasks. If it fails and loses my business money somehow, the liability should be clear.
If, on the other hand, I'm using 98 and some program I've found on shareware.com, caveat emptor.
Just because our current economy is partially based on an incorrect assumption doesn't mean that it should be maintained.
A few thoughts... (Score:4)
2) Limiting you from recovering consequential damages, etc. is something you see in almost all products for sale. And you almost never get to read the warranty before you buy pretty much everything. Just check the manual with your VCR, refridgerator, lawn mower, etc. They all, without exception, disclaim themselves from liability for incidental and consequential damages. (Except in such states that prohibit said exclusions.) Note that while this does not absolve them from gross negligence or intentional malice, but bugs in software generally would not fall into that category.
3) Put yourself in, say, a software writer's seat. If you are writing shareware with a $5 licensing fee, do you want to make yourself open to $1M+ lawsuits if someone relies on your software to do something important, and it breaks? Hell no!
The way I see it, you have one and only one of three choices:
1) Cheap/free(speech/beer) software.
2) Almost no software. (That is how much software would be written if it all had to be bug free, or else.)
3) Expensive software where you pay for the privledge of suing the pants off of the scmuck who wrote it.
Re:Welcome to the License Economy (Score:2)
"Sure it's only made out of $50 worth of sand, but we have a patent on how to do it, so the license fee is $10,000. And don't try one of those home replicator units either, the Feds are watching."
Great comment, overwhelming, even.
--
Re:PBS comes to mind (Score:2)
hehe [wahcentral.net]
Dangerous products are dangerous products, regardless. People should at least have their own source to check. So, now I'm buying a car with the hood welded shut, that has a tendency to explode, and it's my fault if it happens. And it's very expensive. Proprietary software ROCKS!!
--
The Liability Solution (Score:5)
Software vendors shouldn't be held responsible for their bugs. Why? Because it's pragmatically impossible to create bug-free software when you're dealing with millions of lines of code. Even if it is possible, it is economically infeasible to bring the required level of engineering to every project.
Instead, software vendors should be made accountable for process . Software Engineering is a mature body of research on the processes required to produce solidly engineered code. If Brand X software crashes my computer, I'll just have to live with it unless I find out that Brand X rushed their development cycle, slashed their budget, hired script kiddies to implement last minute hacks, and spent a whopping 10 minutes testing the final product. If that happens, I should be able to sue Brand X into nonexistance.
We could even taken it one step further and imagine a codified set of symbols that software vendors could place on their packages to indicate the level of rigor used during production. Third-party certification agencies could back these claims, and people who sue would only win when the company failed to live up to their published level of rigor. Entrepreneurs take note! There may be a market for this.
Wishful thinking, but it's not the law . . . (Score:2)
Under Copyright law, the owner of the Copyright has the exclusive right to copy, distribute and make derivative works. 17 USC s. 106. Your ownership of a copy gives you the right to dispose of that copy alone, but not other copies. 17 U.S.C. s. 109. There are limited rights that apply to owners of a copy of software, but few licenses grant title to the code. 17 U.S.C. s. 117.
The long and short of it is this: current case law overwhelmingly finds that the loading of a COPY of a computer program into RAM for execution constitutes a copying of the software. Such copying violates Section 106 and is therefore an infringement unless excluded under Sections 107, 109 or 117. This is generally not the case. I gave complete citations to these cases last month, and don't have them at my disposal now (I recently abandoned my legal practice to get back to tech work), but the party plaintiffs, respectively were MAI and Southeastern, and they were both 9th Circuit cases.
Whatever you might think should be the law, let us not pretend that we are doing more than wishful thinking in this regard. If GPL grants no right to use, then under these cases you don't have a right to use the code. For this reason I prefer the more "liberal" construction I give to those licenses.
Best to all,
A
Re:Wishful thinking, but it's not the law . . . (Score:2)
Whatever you may think of this result, make no mistake about it. That's the law. Copies in RAM are reproductions under 17 U.S.C. s. 106.
applicability to GPL and other Free licenses. (Score:2)
<BR><BR>
The reason this makes legal sense is that it is a company's responsibility to protect their data. Even a perfect software system is vulnerable to theft or human error. So companies should be making back-ups regularly. But if software doesn't perform as advertized, then it is a defective product. The software company should certainly be required to provide software that does what they say it will do.
-Dave Turner.
Welcome to the License Economy (Score:5)
The waning form of capitalism, the one where goods and services are exchanged for units of value, slowly yields to the new capitalism. In the new capitalism there are no goods, only services. Services are services. Goods are services. Maybe even money will be a service.
The necessity for the License Economy is clear--As the digital media companies have discovered, as the complete cost to reproduce a good approaches zero there is no incentive to purchase the good. In order to profit from a "good" in the License Economy, the goods must magically become a service; therefore converting the good into a revokable and scarce commodity, creating "value" where none existed in the economic sense.
The trick is that the License Economy will seep out of the digital domain. Licensing reliably increases margins on every non-consumable good put into the market. After all, isn't the idea behind capitalism that as the domain of the economy expands, the cost to produce a good approaches zero because of competition and trade (ignoring for the moment as economists like to do, the depletion of natural resources)?
e.g.: My client is an architect. The plans he drew for your house are an expensive combination of engineering/drafting school, knowledge of local and national code, and art, too. In fact, so very much went into your house: the blood of the construction workers and the marketing of the mortgage company, that, well, you need to pay a royalty of just 1% of your montly payment to these hardworking artisans in perpetuity. In addition, if you should ever sell the house, this does not negate the hard work and creativity put into building that house, so your buyer will need take over paying the royalties. Should you care to make an addition to the house, well, you will need to run it by the architect--to make sure it is in line with his artistic vision. He certainly has the right to control how his art is used!
What? You want to defraud these craftspeople? How will they make their living?! Etc, etc...
All long-winded allegory beside, as long as descretely ubiquitous licensing is permitted when purchasing software, it will certainly follow elsewhere, mutating goods into services as we relinquish our notions of personal property and of ownerwhip to the corporations. Sure we'll get to buy our toothpaste and other consumables, but the moment we decide to avail ourselves of a product that might stand a change of outlasting us--a corporation will be set to lease it to you, with certain provsions (for example, upon your death posession is transferred back to the parent company... Those ConGlomCo shareholders worked hard hours to assemble those raw materials into a telephone and hey certainly have a right to profit from it in perpetuity!)
NDAs are licenses for knowledge. The corporate battle against the expiry of copyright will continue to encourage the unending license of all recorded works. Oh, and does anyone remember having to lease a telephone from MaBell? Well, that's the work of a pathetic internet startup compared to the intrusions we can expect with corporate oligopolies in every corner of the market. (Here, I'm mostly talking to those pro-monopolists who decry the MS trial with "Back when ATT was in one piece was the last time I could orgasm.")
Ownership is obsolete. The money's in licenses -- and not just because you can disclaim everything under the sun; you can do that, and still own what you're "selling" too!
Does any of this sound strangely like a certain... underappreciated economic model?
Re:Limited use? (Score:2)
Woah, woah!
'Probably'?
You have NO idea how much testing went into this software product. Most likely, they reached an acceptable number of bugs that were not 'showstoppers' and shipped it.
Later
Erik Z
Re:finally a court making the right choice (Score:2)
//rdj
Proximity to Redmond (Score:2)
One or the other (Score:2)
I'm getting slightly off-topic here but if a company can't back up its claim with a reasonable warranty should they be allowed to make any advertising claims at all?
Re:Woah! (Score:2)
Well, according to one of my professors, if you sign an agreement not to hold them to anything and they don't claim the car is perfect, then yes, they can do that. Of course that kind of thinking doesn't make any sense, but this is america we're talking about.
the internal memo (Score:3)
Sheesh! Silly people.
I think this just gives more props to the virtues of GPL software -- it gives the -user- the power to decide if a bug is "important" or not.
Re:So what software should be liable? (Score:2)
Once a consumer has passed over money in order to receive something, they should be able to expect that it works. I can't think of a single other field that this doesn't apply to - they all have some form of consumer watchdog/ombudsman/etc that regulates the quality of output.
Making commercial software manufacturers liable for all problems resulting from the use of their software would destroy the stock market and result in widespread chaos lasting several years. May I suggest an more constructive alternative?
--
Re:PBS comes to mind (Score:2)
So, is software a good? A tool? Speech? Art? Toy?
--
Cars and software (Score:2)
*crosses his fingers and hopes this doesn't happen*
What might possibly come out of a such an arrangement is an association or fund for small-time software developers that pays for litigation, insurance, etc. (maybe something of the sort even exists and I don't know about it)
--
The other side is crowded. The dead have nowhere to go.
Woah! (Score:2)
For years, I've been operating under the (apparently false) assumption that these "licenses" were not legally binding.
Oops.
In fact, I was under the impression that they had been *struck down* in court before, and found not binding. That they were just a scare tactic.
I'll have to start reading carefully, so that I don't become a towel boy in Bill Gateses' mansion/ fortress like Dilbert once did!
Re:Woah! (Score:2)
That's what I was thinking of when I read the opinion. In this case, the software company knew about the bug, but didn't think it would happen often enough to matter. The plaintiff lost $1.95 MILLION because of it.
That sounds a whole lot like Ford's attitude towards the Pinto problem: Lawsuits will cost X, fixing it costs Y, Y > X, don't bother fixing. Except I can't imagine the bug costing that much to patch, and this error seems directly related to the purpose of the software.
Which relates to the Dilbert scenario mentioned. The opinion also says that "unconscionable" requirements may not be enforceable. The case that was cited to support this required (no kidding, it's right in there)
"French arbitration company,
payment of an advance fee of $4,000 (half which was nonrefundable),
significant travel fees borne by the consumer,
and payment of the loser's attorney fees."
That suggests that "you will be my towel boy" is not an acceptable contract clause -- and neither is "by reading this post, you agree to send me $X in your local currency."
(A big question for the DeCSS case may be "is forbidding reverse engineering unconscionable?")
Having read it, I feel a *bit* better about shrink-wrap licenses, since they can't demand any important body parts as collateral...but also a bit worse, since there should be some liability if software screws up as royally as happened here.
They made the right decision, didn't they? (Score:2)
The real question, though, is why would someone trust Very Big Things (TM) to software that doesn't come with some wort of protection. You wouldn't buy a new car that didn't have a warranty. I don't think that the Pointy-Haried Bosses (TM) out there understand how vulnerable they are under the current system.
I think that this is where Free Software (TM) will shine. I'm not sure whether Free Software on the consumer level will really catch on, but this is, presumably, an important program, which won't be upgraded every three months to take advantage of 3D graphics and shit. Because it is an important program that will last them for a long time, it will be economically feasible to have consultants come in and tinker with the source code if necessary.
I think that if the software in question were Free, then if the bug was present, it would only bite once, before somebody fixed it, which would probably happen before someone lost $1.95 million.
Anyway, I think that consumers should begin to demand more out of their computers and hardware. For software that manages lots of important stuff, they should demand warranties and/or source code to be included in the price of the software.
I really hope that the coolness of Free Software will cause consumers to stick up for their interests more than they've done in the past, and that these software houses have to quit acting like mafia families.
Take care,
Steve
========
Stephen C. VanDahm
consumers and shrinkwrap licenses (Score:2)
Contrary to what
When that happens, you can be sure that companies will start competing on that level. Look at the auto industry. They offer WARRANTIES, as opposed to the computer industry which tends to DISCLAIM responsibility. As long as the computer industry is competitive, I think manufacturers will begin to accept more responsibility for their products.
If you get monopoly situations, on the other hand... well - that invites shrink wrap license abuse.
Best regards,
SEAL
WWW site devoted to opposing shrink-wrap licenses (Score:3)
The decision in the article is a great case-study of what this site warns about.
Humor - Dilbert strips on shrink-wrap licenses (Score:4)
Bill Gates' Towel Boy [uni-bremen.de]
Shrinkwrap legal reference - ProCD case (Score:5)
Re:So what software should be liable? (Score:2)
What about free software for which you pay money for?
Re:Or perhaps it might... (Score:2)
It isn't. It's just wishful thinking.
Re:GPL, Rights, Contracts, and Bagels (IANAL) (Score:2)
What if the person selling you the software is the author of the software?
And the distributor can disclaim that warranty by specifying other terms to the contract -- which the Washington case under discussion holds that it can do via a shrink-wrap agreement.
Well this is my point. The GPL is a contract, or in other words, a shrink-wrap agreement.
Re:GPL, Rights, Contracts, and Bagels (IANAL) (Score:3)
No, because GPL tries to take away your right to a warranty. There is a give and take, so GPL is in fact a contract, and not just a license or a purely right granting document. Since GPL is a contract, assent by both parties is needed. How does the user express assent? Does the act of redistributing the software constitute assent - and hence losing the right to a warranty? Dubious.
Re:GPL, Rights, Contracts, and Bagels (IANAL) (Score:3)
So how does one distinguish between the two cases, one where the person redistributing the software has agreed to all the terms of the GPL (incl. losing your right to warranty), and the other where he has not?
There was no explicit assent. The copyright owner is free to sue in both cases. The redistributor has a sword hanging over his head.
I want a GCL (Score:2)
If I use a GNU tool, I don't have to check the text of the GPL every time. I'd like to be able to do the same with commercial software: read up on the "standard license" once and then not bother.
With an effective GCL, I'd just check the box for the GCL sticker (Or the site for the icon). If it was lacking, I'd know that there might be something to watch out for.
That said, I think that the implications of allowing cusyomers to sue SW companies for millions in damages is scary, shrinkwrap license or not. A warranty is a separate item, if someone wants it they should pay for it too. If I don't want to pay for it, I get cheaper software, but at a greater risk. (or rather with lesser means to get any money if something goes wrong.)
Re:I want a GCL (Score:2)
I want two levels of security for the software customer. One basic level, (guarded by trade law) that guarantees my right to a refund (perhaps including reasonable expenses) in case of a faulty product. One higher level where I, as a customer, can get insurance (for a premium)
The basic level should overrule any shrinkwrap licenses and be enough for most people. Shrinkwrap or click-through licences should only be allowed to *add* to basic rights, not remove them. (just like the GPL gives additional rights.)
The GCL might be a rather weak addition to basic rights, concerning things like support and so on.
Space Shuttle software (Score:2)
So, while your suggestion that we audit their processes is a good one, it does not go far enough. Good processes can produce bug-free software, for any purpose, with any group of (qualified) people.
What about the GPL? (Score:4)
Bear with me for a moment while I play the devil's advocate. I quote from the GPL:
11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Now obviously one can argue that free software by nature shouldn't have a warranty, but that issue is irrelivent when it comes to the law. If we want this aspect of the GPL hold up in court, how can we argue against this recent descision? What if I charge a distribution fee for my GPL'ed software, does this mean that I'm lilable for the quality of that software? Some of use should calm down a bit before we are guilty of hypocracy.
Shouldn't a company be able to sell software with the understanding that there is no warranty? If I had over a million dollars relying on a piece of software, I'd go over the license with a fine tooth comb. Could it be that they just didn't want to pay for a higher quality product and a support contract, and they are just trying to screw the software writers now that it has blown up in their faces?
There, I said it. I feel dirty. Let the flames begin.
thePsychotron
Why didn't the customer negotiate a better license (Score:2)
As an individual, I don't care all that much as to whether I can't reverse engineer my word processor or distribute copies of the game I just bought. I'm willing to accept some of these terms in a license agreement in exchange for a more inexpensive product. Nothing I do a product I purchase on my own is mission critical. The only thing I believe should be included in shrinkwrap license agreements for individual products is language that states that once effective, the contract cannot be changed and that a product takes reasonable steps to ensure that a bug in its code does not harm other aspects of the system it runs on. (One example of a product failing to take these reasonable steps is the "I Love You" problem that made headlines around the world. It would have been nice if Microsoft could be held liable for letting a flaw in its Outlook Express software destroy unrelated data and cause unnecessary network traffic.) I believe that only changes in the law will be able to ensure that this sort of language gets placed in individual agreements.
On the other hand, if I was going to be buying a lot (say $100K or more) of software from a vendor for tasks that my company depends on to do business, I think I would be a good position to tell the vendor that my company won't buy any copies of this product until you agree to replace clauses A, B, and C in the shrinkwrap agreement with X, Y, and Z. A software company would be stupid not to consider a reasonable such offer if not accepting it would mean losing hundreds of thousands of dollars in revenue. If the vendor rejects an agreement that would make them liable for damages their product causes, then as the customer, I would get the impression that they feel the product has serious flaws that could lead to damages in a lawsuit that exceed the amount of money I would be giving them to purchase the product. In this case, I would look at competing products, and failing that, "rolling my own" solution. If the large company goes ahead and buys a product as is and bugs in the product cause the customer major damages, then I believe it's the customer's own fault.
PBS comes to mind (Score:5)
The argument, and the law, is this: The manufacturer/proprieter cannot be held accountable for any damages encurred from something one could reasonably expect in a good. So...can one reasonably expect bugs to be present in a given program? Unfortunately for the consumer...the answer is a resounding YES. The manufacturer's claim is furthered by the fact that the consumer, in this case, agreed to the terms of the software. While you may not, in a court of law, sign away your rights as a consumer, there is no constitutional, or otherwise, right to bug-free software.
caveat emptor!
FluX
After 16 years, MTV has finally completed its deevolution into the shiny things network
But non-shrink-wrap licenses... (Score:2)
Free software is not shrinkwrapped (Score:2)
QPL (troll) (Score:2)
All that's needed is a clause in the license that says that you aren't allowed to distribute the modified program as source or otherwise.
Troll Tech's QPL [trolltech.com] already does this; modified source must be distributed as patches.
Or perhaps it might... (Score:2)
Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License
Compiling is modifying. Linking is modifying (otherwise, there would be no need for Lesser GPL [gnu.org]). Any irreversible transformation is modifying in the eyes of the law (tarballing or zipping is "mere aggregation," not modifying, because it can straightforwardly and automatically be undone).
So by compiling the program, you modify it and accept the License [gnu.org] including without limitation the NO WARRANTY provision. The only way a program can be executed without being compiled would be:
Cygwin (Score:2)
The issue with linking is not that it's modifying, but that it is is creating a derived work from the library.
Again, IANAL, but modification == creation of a derivative work.
When a program is dynamically linked to a library, some information is placed in the resulting executable as to what library files need to be accessed.
Is this information (linker .defs) considered a "derivative work" of the GPL'd library? It seems to be in Cygwin's case.
Re:GPL, Rights, Contracts, and Bagels (IANAL) (Score:2)
In exchange for the dubious "right to use" the software, they state that you must agree to waive certain rights you would otherwise have. By clicking on the little "I Agree" button, you thereby (supposedly) waive those rights in exchange for the "right to use". But there is no "right to use" -- or rather, the right to use is inherent in legitimately-granted access to the software.
But there is no access to the software if the "I Agree" button is not clicked or if the software package is unopened. The software is a compressed, encrypted archive until you push that button; it's just a cheap CD case until you open it. You have the right to use it, but you do not have the ability.
Running a program copies it (Score:2)
Well, let someone who has no interest in using the software do it. They will waive their rights, you will use the software and keep the rights.
Nice one. IANAL, but without accepting the license, does the user have the right to copy the program into RAM (by giving commands to the shell) to run it?
While doing research for the answer, I found 17 USC 117 [cornell.edu] that makes the GPL equivalent to LGPL:
Pretty much destroys the "linking is adaptation" theory that is the foundation of viral copyleft.
Why only 65535 bugs? (Score:3)
How about if the OS has been documented by the producer admiting to the existance of oh, say 65000 bugs?
It seems that M$ reported 65,535 confirmed issues because anything higher than that would overflow the data type unsigned short. Sounds like they wrote their bug tracker with an old 16-bit DOS compiler. The scandiskers (can't say fsckers; this is M$) should have used this 32-bit compiler [delorie.com] (a Free one at that) to make their bug tracker...
Re:Proximity to Redmond (Score:3)
What you need to realize is that the state of Washington, and the city of Seattle in particular, have a love-hate relationship with Microsoft. They're vaguely proud of us, in the same way that you might be proud of your dog after it turned over the picky neighbor's trash...on the one hand, you're glad to see the neighbor humiliated, but, on the other hand, you still think the mutt stinks.
To read the local press, we're the source of all evils locally. We're blamed for the "sudden" rise in housing prices in the city, for traffic on the 520 bridge, for the rise in crime, and for social injustice. Sometimes I'm surprised that we haven't been accused of having a role in the 1980 eruption of Mt. St. Helens!
The truth is that Microsoft is a small part of a very large city. Certainly, many of the company's employees are wealthy, but Seattle is still the center of the circles of power in the state. There just aren't enough of us to really throw our weight around.
How to Protest Shrinkwrap Licenses (Score:2)
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Re:Proximity to Redmond (Score:2)
Policial pressure not always have the most palatable results, but think about your statement for a second. A political figure who is uninfluenced by political pressure is, by definition, I would think, a dictator...
Re:What about the GPL? (Score:2)
I don't want any proprietary vendor held to answer for its products
Uhh... look, I'm generally as libertarian as the next guy around here, and I like to see contracts respected... but I hope (and cautiously assume) you're only talking about software here. If you mean that it should be legal to sell childrens' car-seats made of balsa wood, or soup with botulin (so long as it's listed amongst the ingredients) - your logical conclusion is unacceptable to me. Call me a socialist.
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This is no surprise (Score:2)
And I can't believe that this comes as a surprise to anyone! When was the last time you had any legal recourse for bugs in software? You have to pay to upgrade OSs and applications - often the supplier is good about it and charges nominal upgrade fees for 3.0 to 3.01, but for 3.0 to 4.0 you usually have to pay.
The only really bug-free software is used in life-support systems and the like, and that sort of software is fantastically expensive to develop, using formal proofs and Z-notation and all a large corpus of highly-qualified staff to ensure that it is 100% bug-free. No one reading this could afford to buy a copy of any software written this stringently.
The people who are complaining about bugs in software, and who think they should be able to sue companies who put out buggy software, should consider this: If the law changes to make software manufacturers liable then software would become too expensive for us all. Even corporations couldn't afford it. The entire computer industry would just die. We'd go back to using paper and pen ... and mistakes would still occur. (I can't believe these bozos who lost $1.7 million on a contract didn't cross-check the figures before quoting them!)
And Open Source software ... well, if the Open Source community had any liability for the quality of their products we'd all be screwed. I'm not saying that OSS isn't high quality, probably higher in many cases than equivalent commercial software, but a change in the law like this would require guarantees of zero bugs, and that just ain't gonna happen.
Be careful what you wish for. I'm quite happy with software that comes without guarantees. The alternative is just too horrible to contemplate.
Dumb..... (Score:3)
They'd have to recall the product, fix it, and they'd be liable for damages to the person maimed. And if they said "this lawnmower is sold on the basis that if something goes wrong, it's not our fault" and tried to use that as an excuse, people would react with either outrage or downright laughter.
Re:So what software should be liable? (Score:4)
Once a consumer has passed over money in order to receive something, they should be able to expect that it works. I can't think of a single other field that this doesn't apply to - they all have some form of consumer watchdog/ombudsman/etc that regulates the quality of output.
The issue becomes hazy when it comes to free software. On one hand, nobody wants to rely on it when there's no guarantee. On the other hand, you can't expect people to contribute to the free software community if they could get their ass sued over a bug that resulted from a 2.30am coding session. They lack any sort of protection - as opposed to professional coders, in which case the company rather than the individual coder would be liable. Even doctors, etc.. in many countries are personally protected from personal damages by way of liability insurance, and/or protection by the law.
There is some precedent IRL for this... if a friend volunteers to help me decorate and knocks over an expensive vase, I and most other people would just write it off. A court would probably be dubious if I tried to sue them. (remember, I'm in Australia, not America :) But it's a different story if I'm paying a professional to decorate for me.
I reckon that if software is not advertised as working (free software coders: be liberal with the 'alpha' and 'beta' tags), then a certain degree of slack is permissible. However, once a software house is taking out full page adverts claiming that their software will be good for a company, they have an obligation to uphold those claims and make sure the software works.
Huh? (Score:2)
Who do you sue if a sound card-OS interaction crashes the system? I bet I could design a sound card that crashes a computer. You have parts from maybe 2 dozen or more different vendors and you want to blame the software maker?
How's this for a "solution"? You want a guarantee? Then you run the software on hardware and with a configuration of the providers selection with no unauthorized software or hardware! And only certified professionals can touch the machine.
Re:PBS comes to mind (Score:3)
Re:Woah! (Score:2)
If a car company discovers that it has shipped x units with bad brakes then it generally issues a recall and replaces the part(s).
This is similar to posting a software patch
A car company usually is not held liable for all damages caused by the bad brakes before the problem is rectified. This is what the car owner's insurance is for.
It probably is possible to get insurance for software but my guess is that it would be expensive.
Have you ever heard of Lubarsky's Law of Cybernetic Entomology: Every non trivial program contains at least one bug.
If you want bug free software then it can be provided. It will cost two orders of magnitude more or you can choose to use nothing more sophisticated than Solitaire.
For those of us living in the real world this is not an option.
You cannot reasonably expect a software company to bear all liability for using their software. However, you should expect that reported bugs will be addressed in a timely manner in order of severity.
Although you should also be able to expect that software will be shipped with less than 63000 known bugs^H^H^H^H er issues.
Re:Woah! (Score:2)
Not saying it is a good thing... but most people who worry about the license being "enforcable" are more worried about being zonked by the vendor, fewer worry about their 'right' to sue the vendor.
I knew I forgot something! (Score:3)
If anyone has a copy, can you please add an additional line at the top before redistributing it: "rem BY RUNNING THIS PROGRAM YOU AGREE TO DISCLAIM ALL LIABILITY FOR ANY DAMAGE CAUSED BY RUNNING THIS PROGRAM." Thank you, I love you!