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Journal Journal: Software Liability 3

I've been seeing lots of stories lately about software liability. Here's one. Geez, I hope this doesn't happen.

I think this would have a chilling effect on open source/free software. First, because it would make it impossible for opensource/free software developers to provide the kind of software liability that someone with as deep of pockets as Microsoft. Personally, I could not release my code. I simply couldn't do it. It'd be too risky. Suppose that some big bad company got it, and despite the fact that they had the source code they mis-installed it, or it contained a bug, or whatever. They have a huge number of lawyers. I can't possibly afford to defend myself against their liability claims. And since they didn't pay anything in the first place for the code, why wouldn't some enterprising organization make a business plan out of grabbing open source/free software, and suing the developers? Suppose we all have $50k worth of assets. A company pays nothing for the software, which breaks something in their network, they sue, and collect $50k for each developer they can find. Why not do this?

The effect of this would be so chilling that any such law might be unconstitutional. IANAL, but remember that code is speech. So anything that puts a prior restraint on source code (a.k.a. speech) is a violation of a person's 1st amendment rights. Does requiring product liability put a prior restraint on speech? Hasn't this already been tried before? Haven't the producers of instructions on how to make bombs already demonstrated that they can't be liable for how their speech is used? So it seems to me, at least somewhat likely that a software liability law could not apply to open source/free software, since that's speech.

But what about all the people out there who release binary versions of their software, like anyone who makes a .rpm, or all of the distributions? They certainly can't claim that they're exercising free speech. While source code is speech, binary code doesn't enjoy the same protections. Wouldn't they be subject to product liability laws, since binary packages are products? What will that do to Red Hat, Mandrake, et al? Or worse: the volunteer based distro's like debian?

(Any of you lawyers, and can give some thoughts on these questions?)

So all open source/free software can *only* be released in source code form. And when that happens the authors are not subject to software liability. Then all the PHB's would finally be able to say, truthfully, that open source/free software is a liability for enterprise deployment because you can't sue anyone if there's a problem. They say it now, even though the implication that you could sue Microsoft is entirely false. I'd hate to make that statement true.

I just hope that this doesn't happen. I like open source/free software. I like writing it. I like using it. I don't want it to be effectively outlawed by this silliness.

Comments enabled - let me know if I'm completely off my rocker.

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