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Should Developers Be Liable For Their Code?

Soulskill posted more than 4 years ago | from the this-can-only-end-well dept.

Security 517

Glyn Moody writes "They might be, if a new European Commission consumer protection proposal, which suggests 'licensing should guarantee consumers the same basic rights as when they purchase a good: the right to get a product that works with fair commercial conditions,' becomes law. The idea of making Microsoft pay for the billions of dollars of damage caused by flaws in its products is certainly attractive, but where would this idea leave free software coders?"

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517 comments

Not my fault (5, Funny)

oh_bugger (906574) | more than 4 years ago | (#27888455)

As a developer, I say that surely it's the tester's fault if there's flaws!

Re:Not my fault (5, Insightful)

s_p_oneil (795792) | more than 4 years ago | (#27888899)

Hmm, it would probably go like this:

Engineers: "It's the software!"
Developers: "It's the hardware!"
Both: "Why didn't the testers catch this?"
Testers: "That wasn't one of the use cases, so it's the designers' fault."
Designers: "The product wasn't meant to be used that way, so it's a documentation error if the tech writers didn't tell users not to do that."
Tech writers: "Don't look at me, I just write what you guys tell me to write."

Open Source Developer: Don't look at me. My users contribute design ideas, code, docs, testing, etc. So if there's a problem, it's their fault 4 times over for designing it, coding it, failing to test it, and failing to document it. ;-)

gpl comes with a license (2, Interesting)

superwiz (655733) | more than 4 years ago | (#27888461)

and no one to sue. and don't think the fact that you get it for free matters -- you can sue a soup kitchen if it gives you food poisoning.

Re:gpl comes with a license (4, Insightful)

A beautiful mind (821714) | more than 4 years ago | (#27888559)

you can sue a soup kitchen if it gives you food poisoning.

Sure, since that's a public health matter. If software controlling an aircraft crashes and causes the aircraft to crash too and that kills people, I'm pretty sure the software makers might end up liable too.

To continue your analogy, if a soup kitchen gives you soup that is too cold, comes in a plastic bowl and is too small of a portion, you've got nowhere to turn with that and you should have nowhere to turn with that, it is gratis after all. On the other hand, if this happens in a restaurant that calls itself high quality and advertises the famous chicken soup from a master chef and you get the same treatment, then there are numerous consumer protection agencies in Europe at least to fine the given restaurant.

Re:gpl comes with a license (1)

superwiz (655733) | more than 4 years ago | (#27888589)

the fact that you can sue is not related to public health. i didn't say you'd get fined. sued. suits are brought to recover damages caused by the counter party -- not to shape public policy. in other words, they are a way of settling disputes between the two parties involved. so the analogy still holds.

Re:gpl comes with a license (5, Interesting)

Timothy Brownawell (627747) | more than 4 years ago | (#27888615)

If software controlling an aircraft crashes and causes the aircraft to crash too and that kills people, I'm pretty sure the software makers might end up liable too.

Actually it would probably be whoever decided that that software was OK to use in an aircraft. If I were to somehow get an aircraft and install Gentoo on some critical system, I'm pretty sure I'd be the one to get in trouble rather than the Gentoo or Linux (kernel) or Glibc people.

Re:gpl comes with a license (4, Interesting)

chill (34294) | more than 4 years ago | (#27888625)

Except you just can't run anything for aircraft control. Read the fine print on software like Java, Windows and other items. You'll see it explicitly states you are not to use it for nuclear power plants, aircraft control and other life-critical applications. There are special rules for the super-critical stuff.

On the other hand, if this happens in a restaurant that calls itself high quality and advertises the famous chicken soup from a master chef and you get the same treatment, then there are numerous consumer protection agencies in Europe at least to fine the given restaurant.

That concept is so pathetic I don't know where to begin. Consumer protection agencies to fine a restaurant for poor quality and bad treatment? Are Europeans that big of pussies? What is wrong with "tell your friends they suck, don't eat there" and watch their business evaporate? You can't be serious that the government steps in for things like this!?

Re:gpl comes with a license (1)

A beautiful mind (821714) | more than 4 years ago | (#27888683)

That concept is so pathetic I don't know where to begin. Consumer protection agencies to fine a restaurant for poor quality and bad treatment? Are Europeans that big of pussies? What is wrong with "tell your friends they suck, don't eat there" and watch their business evaporate? You can't be serious that the government steps in for things like this!?

There is a difference between matters of personal taste and false advertising, deceptive business practices and business scams. I was trying to make an analogy that distinctively falls into the latter, but as with all analogies, it is like a scotsman trying to make a car analogy: not that good.

Re:gpl comes with a license (2, Interesting)

mdwh2 (535323) | more than 4 years ago | (#27888781)

you can sue a soup kitchen if it gives you food poisoning.

But equally, people should be free to say what use their product is intended for. You can sue someone if they sell you food, you can't sue someone if they sell you some substance, and you decide to eat it (especially if it has warnings not to eat it).

The GPL states (similarly to most licences):

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.

If this isn't enough for a new law, then expect to see many software developers using a licence that states "This software should not be used for commerical purposes" or even "at all [except perhaps for a few limited, restricted uses]".

I also fail to see how causing injury is comparable to alleged liability of Microsoft - there Windows did not in itself cause damage, the problem is loss caused by downtime. It's the difference between a car blowing up in your face, and a car not working so you miss an important meeting. (And if you take a car and drive it into the sea, you don't get to sue no matter how annoying the results are to you.)

There may well be a market for software that does allow liabilities for loss (i.e., they say it is intended to be used commercially). Expect to pay at least ten times the price for it.

Re:gpl comes with a license (5, Insightful)

rackserverdeals (1503561) | more than 4 years ago | (#27888877)

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW.

If the law changes and requires software to offer a warranty then the GPL will be vulnerable. Even if the GPL didn't include that statement, a court could invalidated it because a contract that breaks the law is not legally binding.

Changing a license for a big project isn't always easy.

This will most likely hurt companies like Redhat, Canonical, Novell and other corporate open source contributors because they will have to stand by their products and you're bound to get a few cases where they have to pay up.

But it's not a law yet.

Re:gpl comes with a license (2, Insightful)

superwiz (655733) | more than 4 years ago | (#27888921)

But equally, people should be free to say what use their product is intended for.

As a number of people pointed out, there are exceptions to this. Basically, laws can restrict what types of agreements can be entered into. The most extreme example of this is that you can't enter into a contract to be a slave. A less extreme example would be a law that voids all "no warranty" clauses of software licenses.

I also fail to see how causing injury is comparable to alleged liability of Microsoft.

Law suits are a mechanism for recovering damages caused by the other party. You can't sue someone for wrong doing (that's what criminal laws are for). What you sue for is the damages that the wrong doing (or negligence or even plain stupidity as long as the counter party was actually the cause of it). The money you win in a law suit is meant to compensate you for the damages you suffer. In this respect both poisoning and bad software are similar.

the problem is loss caused by downtime

What if it's loss of data? Besides, time is worth money, too. And a car breaking down due to wear and tear is one thing. A car breaking down because of a faulty design is quite another. You can sue in the latter case but not the former.

Re:gpl comes with a license (0)

Anonymous Coward | more than 4 years ago | (#27888837)

Not if the kitchen tells you that the liquid in the cup "is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY". It's up to you to determine whether it is soup or arsenic. That's why you should be very careful about what claims you make in relation to any software you release.

Re:gpl comes with a license (3, Informative)

jabithew (1340853) | more than 4 years ago | (#27888871)

Doesn't GPL have explicit anti-sue protection, with that whole section on lack of implied merchantability or warranty?

This program is free software: you can redistribute it and/or modify
        it under the terms of the GNU General Public License as published by
        the Free Software Foundation, either version 3 of the License, or
        (at your option) any later version.

        This program is distributed in the hope that it will be useful,
        but WITHOUT ANY WARRANTY; without even the implied warranty of
        MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the
        GNU General Public License for more details.

        You should have received a copy of the GNU General Public License
        along with this program. If not, see http://www.gnu.org/licenses/ [gnu.org].

From the GNU how-to [gnu.org].

Does anyone know how this would interact with the potential EU law?

Where would this idea leave free software coders? (0)

Anonymous Coward | more than 4 years ago | (#27888465)

Going to medical school.

Re:Where would this idea leave free software coder (4, Funny)

superwiz (655733) | more than 4 years ago | (#27888487)

Going to medical school.

umm... to avoid being sued?

Re:Where would this idea leave free software coder (1)

RDW (41497) | more than 4 years ago | (#27888757)

'Going to medical school.'

Going to law school?

And while they're there, they could work towards drafting some sort of legal framework that guarantees 'consumers' of the European Commission's policies the same basic rights as those expected under other responsible authorities - e.g., the right not to have harmful copyright extension legislation imposed by an organization that 'wilfully ignores scientific analysis and evidence in its policy making process':

http://www.out-law.com/page-9378 [out-law.com]

if you pay you get working stuff or a refund, (5, Interesting)

A beautiful mind (821714) | more than 4 years ago | (#27888481)

if you get it for no price, you don't enjoy such priviledges.

If someone sells GPL based software, they are free to do so and pick up the tab on flaws in the product. Same goes for proprietary software.

This should have been done at least 10 years ago.

Re:if you pay you get working stuff or a refund, (2, Insightful)

sopssa (1498795) | more than 4 years ago | (#27888595)

If you get free food and it gives you food poisoning, the one that made the soup will still be viable. Same issue here.

Re:if you pay you get working stuff or a refund, (0)

Anonymous Coward | more than 4 years ago | (#27888655)

even after he warns you about it? "I am not responsible for any thing that may happen if you eat this free food. Go ahead if you are really sure..."

Re:if you pay you get working stuff or a refund, (1)

sopssa (1498795) | more than 4 years ago | (#27888773)

Yes. You also cant tell someone on the street that "I am not responsible for any thing that may happen if you take this free fight with me. Go ahead if you are really sure..." and you happen to kill him. You will be responsible, even if it was free and you warned.

Re:if you pay you get working stuff or a refund, (1)

maxume (22995) | more than 4 years ago | (#27888901)

If I sell you (reasonably labeled) motor oil and you drink it, holding me responsible for your stupidity is ridiculous.

I seriously doubt that most people would be interested in paying what disclaimer free software would cost, so this whole idea seems pretty unlikely.

Re:if you pay you get working stuff or a refund, (5, Insightful)

rliden (1473185) | more than 4 years ago | (#27888881)

Do you really want to pay for perfect? There are risks associated with anything and buying perfect costs a hell of a lot of money.

This is an issue that is more complicated that should developers be held liable for perfection. Is it good enough to work reliably in most cases? Was there a malicious or negligent intent to box and bunch of schlock? There are a lot of good questions that could be asked here when trying to define the responsibility and accountability of development companies.

The market for proprietary software and the community for open source software does function pretty good for weeding out the crapware.

Re:if you pay you get working stuff or a refund, (2, Insightful)

Cormophyte (1318065) | more than 4 years ago | (#27888955)

This should have been done at least 10 years ago.

Well, yes. But like a great many technological issues the people who make the law have been completely ignorant that the issue even exists, let alone proactive enough to formulate a solution for it.

GPL (4, Informative)

neoform (551705) | more than 4 years ago | (#27888489)

http://www.opensource.org/licenses/gpl-license.html [opensource.org]

Also, for each author's protection and ours, we want to make certain that everyone understands that there is no warranty for this free software. If the software is modified by someone else and passed on, we want its recipients to know that what they have is not the original, so that any problems introduced by others will not reflect on the original authors' reputations.

Re:GPL (2, Interesting)

superwiz (655733) | more than 4 years ago | (#27888511)

there is no warranty for this free software

every software license worth its salt has this clause. laws can make certain parts of agreements void. for example, you can't enter into a contract to be a slave.

Re:GPL (2, Insightful)

MeanMF (631837) | more than 4 years ago | (#27888555)

Sure it's in the license now, and there are similar statements in the license agreements for most commercial software. But the license agreement is only valid if it's legal. So the question is what would happen if a law is passed that guarantees consumers certain rights regardless of what is in the license?

Re:GPL (2, Informative)

maharb (1534501) | more than 4 years ago | (#27888571)

If a law is passed 'protecting' the consumers then this clause of the contract become void. You can't have a contract to kill someone and have it upheld in court. Same goes with this sort of thing.

There are other complications but basically that clause doesn't help because it would become an illegal clause.

open source is still not liable (4, Insightful)

voss (52565) | more than 4 years ago | (#27888823)

Because the software is not purchased there is no contract. "permission to use" is not the same as a sale.

Re:open source is still not liable (1)

kav2k (1545689) | more than 4 years ago | (#27888905)

Maybe, just maybe this will nudge Microsoft towards open-sourcing Windows, as discussed [slashdot.org] before.

Stupid Idea (5, Insightful)

Courageous (228506) | more than 4 years ago | (#27888493)

The idea that code should be perfect is a stupid idea: consumers don't want that.

They want "good enough," not perfect. Perfect costs a great deal of money, probably 4X, and consumers will buy the good enough product, at 1/4 of that price, well beyond 95% of the time.

C//

car analogy (0)

Anonymous Coward | more than 4 years ago | (#27888619)

The idea that code should be perfect is a stupid idea: consumers don't want that.

They want "good enough," not perfect. Perfect costs a great deal of money, probably 4X, and consumers will buy the good enough product, at 1/4 of that price, well beyond 95% of the time.

C//

Consumers want air bags that deploy in a "good enough" fashion and seat belts that hit a 95% success rate.

Re:car analogy (1)

iamhigh (1252742) | more than 4 years ago | (#27888691)

wtf is with all the straw man args in this thread. ac, those are not the same at all - fuck a seatbelt has no electronic controls at all - dumbass.

Re:Stupid Idea (1)

sopssa (1498795) | more than 4 years ago | (#27888639)

There will never be such thing as perfect code, not even with 4x prices to create it. You can improve a lot tho.

Re:Stupid Idea (4, Interesting)

rlseaman (1420667) | more than 4 years ago | (#27888667)

The idea that code should be perfect is a stupid idea: consumers don't want that. They want "good enough," not perfect. Perfect costs a great deal of money

Your comment is "insightful", but it is beside the point. This is exactly the same issue with all engineering. An object manufactured to better standards than needed for the purpose is an overly expensive object. The question rather is the web of responsibility. If Microsoft or Google or even somebody's shareware makes a claim of suitability, certainly the consumer should have redress when it proves unsuitable.

There are many other dimensions of this issue. For instance, the software industry is well known for adding pointless complexity - features that nobody ever asked for. If GE added a can opener to a toaster, they would be liable for any unexpected risks this reveals, but Microsoft can make Word so complex that businesses using it accrue large expenses related to training, etc., and risks related to misformatted and delayed documents and so forth - and yet Microsoft currently faces no significant market pressure from liabilities associated with having broken their own product.

And that happen ohow often ? (1)

aepervius (535155) | more than 4 years ago | (#27888669)

Although in the last years I will admit there was a tendency to put on sale software which don't have major breaking bugs, "They want "good enough,"" very often good enough was not even provided. And in such a case you can certainly be SOL. This is particularly true with game , when retailer don't happen to accept back openned package, and you can get a real stinker which don#t even work.

Re:Stupid Idea (1)

Cl1mh4224rd (265427) | more than 4 years ago | (#27888693)

The idea that code should be perfect is a stupid idea: consumers don't want that.

They want "good enough," not perfect. Perfect costs a great deal of money, probably 4X, and consumers will buy the good enough product, at 1/4 of that price, well beyond 95% of the time.

How is this different from any other product that people regularly pay for? Yet the makers of those products are still liable.

Re:Stupid Idea (3, Interesting)

Anonymous Brave Guy (457657) | more than 4 years ago | (#27888705)

Exactly. The problem with trying to enforce this kind of measure for software is that there is a cost/performance curve, and most people don't want to pay to be right up at the end of it.

Heck, no-one in the world knows how to get right up to the end of it. Even the guys at NASA, whose development process is awesomely effective at producing reliable software compared to the the commercial/home user industry, still get bugs. Given the nature of their work, their bugs can cost as much in a single mission as a bug in widely used home user software costs spread across the whole user base, potentially including a cost in human lives, so it's not like they're hiring stupid people or not trying to get everything perfect.

Re:Stupid Idea (4, Funny)

14erCleaner (745600) | more than 4 years ago | (#27888715)

Perfect costs a great deal of money, probably 4X

With free software, it's even more than 4X. Maybe even 10X.

Re:Stupid Idea (2, Insightful)

williambbertram (958094) | more than 4 years ago | (#27888817)

First of all, I would strongly disagree that most consumer software is currently 95%, more like 45% at best. I currently recommend people NOT use many of the consumer products with the highest market penetration, simply because it is nearly impossible to make them both safe and usable.

Second, we're paying far more than 4x for "good enough". Sure, the consumer goes and pays the "good enough" price, but that is FAR from the end of it. Consumers spend hundreds of billions every year fixing and securing "good enough".

Third, there are many more people affected than "consumers". All other markets including commercial, and government are affected. Corporations have to pay millions for AV, IDS, encryption, firewall, backup / recovery, and other related products because the core products are "good enough".

I would say the world has had it's fill of "good enough".

Re:Stupid Idea (0)

Anonymous Coward | more than 4 years ago | (#27888831)

Sure they do, they just don't want to pay the necessary price.

If i had two copies of some software, both at $199. One is "good enough" and one is perfect, or damn close, which do you think I'm going to pick? It has less to do with what they want and more with what they are willing to pay.

Re:Stupid Idea (0)

Anonymous Coward | more than 4 years ago | (#27888865)

Try more like 400x the cost for "perfect" software. Just look at how much a measley averaging module will cost if you need it "perfect" because its determining drug dosage that could kill a patient. Then tell me you want EVERY peice of software with those costs, and also you need to reason why such "perfection" is required for me to play a game.

Protecting the free software coders. (0, Insightful)

Anonymous Coward | more than 4 years ago | (#27888497)

I say that if someone is making software for profit that they should be liable for their code. This would protect the free software coders. Might give Linux a legitimate chance..

What if.. (5, Insightful)

Mastadex (576985) | more than 4 years ago | (#27888505)

Say a developer uses a number of 3rd party libraries (ie. Boost, TinyXML, etc), who will be pay damages if the program crashes in a bad way? The developer for not trying to catch 3rd party crashes, or the 3rd party for writing in bad code?

Re:What if.. (5, Insightful)

A beautiful mind (821714) | more than 4 years ago | (#27888593)

The one who sells the given product. This is all about sale.

If my harddrive breaks within warranty period, I don't go to the company who manufactured the silicon or the ICs, I go to the retailer or Samsung, who sold me the drive.

Re:What if.. (1)

sopssa (1498795) | more than 4 years ago | (#27888647)

Developer will pay for the first hand damages, but on the hand he can go after the 3rd party library maker and try to get them pay for his damages. This is how it works elsewhere too.

Re:What if.. (0)

Anonymous Coward | more than 4 years ago | (#27888971)

The way a lawsuit works is you sue everyone up the chain.

Only if they get final say on release of the code. (4, Insightful)

GuyverDH (232921) | more than 4 years ago | (#27888515)

Until the coders get total control of the project, from inception to completion, then no, they cannot be held responsible for bugs in the code.
How many companies push to get code out the door with *imperfections* - claiming they'll fix those in the first update?
Too many these days.
I'd say it's the management that controls the release schedules that should sign their names in blood on the bugs still known about (and unknown as testing probably wasn't allowed to complete).

Re:Only if they get final say on release of the co (1)

sopssa (1498795) | more than 4 years ago | (#27888657)

I think it'll be the companies responsability here, not a single developer's. If the company gets shit tho, they'll prolly fire that developer.

Same place as always... (1)

Timothy Brownawell (627747) | more than 4 years ago | (#27888545)

The idea of making Microsoft pay for the billions of dollars of damage [zdnet.com] caused by flaws in its products is certainly attractive, but where would this idea leave free software coders [linuxjournal.com]?

Probably the same place as always, ie, "you get what you pay for". If the users don't pay you, they can't reasonably expect anything from you. Well, maybe they could if you were to tell them that it would work (but who does that anyway), IIRC there tend to be rules about when people are harmed by relying on something you told them?

This isn't a way to make software better.... (2, Insightful)

yourassOA (1546173) | more than 4 years ago | (#27888551)

or coders liable for anything. It will allow the government to say thing like, "Well your small company does not have the financial ability to support your product for "X" amount of years and you need insurance in case there are millions of lawsuits we are sorry but you can't sell your product". Meanwhile the large company (they are to big to fail or follow the rules everyone else is expected to) caries on as usual having eliminated to competition through government assistance and gets to carry on as usual because they are the only company left and we need them.

Re:This isn't a way to make software better.... (1, Insightful)

Anonymous Coward | more than 4 years ago | (#27888663)

ehh.. what?

In most european countries "X" is two.. supporting your software for two years is not unreasonable at all.. and what lawsuits are you talking about?

Are you saying this is what has happened to the world of physical goods? Since this would bring software products into the same playing field as those.

Re:This isn't a way to make software better.... (1)

sopssa (1498795) | more than 4 years ago | (#27888699)

This is usual in big indrusties tho. For example banks are not allowed to be operate without certain level of financial ability, and I remember there just lately being news about US gov ordering some banks to increase their financial ability if they want to continue operating.

Computer industry has become a huge industry aswell, specially companies like Microsoft who almost everyone are using(*except who use linux/freebsd/etc only, but thats still a minority)

Re:This isn't a way to make software better.... (1)

iamhigh (1252742) | more than 4 years ago | (#27888793)

wow, you are missing the point. yes a bank has to financially stable, as that is their business, but a small software company shouldn't be required to have millions in liability insurace just to operate. think before you type. try to understand the argument before attacking it. and maybe you wont sound so clueless.

That's one good thing about open source (1)

anthm (894202) | more than 4 years ago | (#27888563)

When you create closed source code you have a much higher chance of flaws because your code can not tested nearly as much as open source can. As the leader of an open source project, FreeSWITCH http://www.freeswitch.org/ [freeswitch.org] , I am fortunate to have a very large crowd of beta testers who help ensure our releases are as stable as they can be. If you are selling the application and never letting anyone see the source you run a very high risk of missing something in Q/A and releasing buggy software. When people pay for it the will get angry so I am not surprised such a suggestion is being made but I find it unpractical to enforce since if it "works right" is hard to judge in some cases besides maybe medical equipment or other situation where human lives are at stake. Blue screens of death are hardly an excuse to sue anyone.

Re:That's one good thing about open source (2, Insightful)

rxan (1424721) | more than 4 years ago | (#27888783)

I am tired of these implicit assumptions that FOSS is better than proprietary/closed source. You assume that because you have an FOSS product that you automatically have more people testing your it.

A large company just released a RC for their new OS. It's a closed source and proprietary product and it's being tested for free by more people than your product is (admittedly). You should check it out.

Furthermore, open source only matters for testing when your testers are actually doing white box. Unless your free testers are staring at code all day trying to force defects, it's all in vein.

Re:That's one good thing about open source (0)

Anonymous Coward | more than 4 years ago | (#27888933)

But when closed source software is released it has already been tested. Open source software is tested by releasing it.

EULA (-1, Troll)

Anonymous Coward | more than 4 years ago | (#27888565)

Ever read the EULA?

"SomeSoftwareCompany is not responsible for any damages...."

If you want software with higher security/stability then make sure you get one with a proper EULA.

Re:EULA (1)

A beautiful mind (821714) | more than 4 years ago | (#27888641)

Constitution/International treaties > laws > government regulation > private contract > untested in court, onesided statements such as EULAs.

Does this clear it up for you? :)

Re:EULA (1)

superwiz (655733) | more than 4 years ago | (#27888709)

Constitution/International treaties > laws > government regulation > private contract > untested in court,

Could you site the case? Because I am fairly sure "the law of the land" doesn't make it on par with the Constitution. All laws passed by Congress are laws of the land. Unless it explicitly says that treaties have the power to modify the constitution, they don't have such power.

Re:EULA (1)

A beautiful mind (821714) | more than 4 years ago | (#27888851)

I guess you could argue this depending on the country. In most countries ratifying treaties and amending the constitution of the country requires a supermajority and from a legal POW (IANAL) treaties are on par with the constitution (this is the case for example in Hungary, the country I live in). It might be the case that in the USA, treaties are considered below the constitution a notch in importance, but I'm pretty sure that if a law and a treaty disagrees, the treaty is considered valid.

Re:EULA (2, Insightful)

sopssa (1498795) | more than 4 years ago | (#27888727)

If they pass a law to protect consumers tho, eula cannot go against it. Those parts in the EULA would be just as null.

Thats how it works in some countries in europe aswell. For example most eulas try to prohibit you from making *any* copies of the software/game, but laws state that you can make yourself personal copies. Law goes on top of EULA, and if they differ law always wins.

If you pay for a product, it needs to work.Period. (1)

olsmeister (1488789) | more than 4 years ago | (#27888575)

Only in software is it accepted that you can put a product out there that does not work as advertised. It seems that these days the idea is to get the product out there ASAP, and finish it later with patches and updates. It is great that with ubiquitous internet access and 'phone home' functionality built into a lot of software these days we have the ability to fix bugs and add features on the fly after the purchase date; however this should not be used as an excuse to release what in reality is beta code, charge people for it, and then try to polish it up later on (if it even gets done at all...the temptation would just be to move on to the next 'version').

Re:If you pay for a product, it needs to work.Peri (0)

Anonymous Coward | more than 4 years ago | (#27888741)

Paying for a product that does not work as advertised happens in politics too, but with software it's at least slightly democratic since you can choose a different product, instead of being forced to pay more for yet another promise to fix it.

The word: Purchase (4, Insightful)

MathFox (686808) | more than 4 years ago | (#27888577)

Most EUropean countries have clauses in their laws that instruct the judge to take the price of the good into account when considering what would be a reasonable quality for a product. A corollary of that is when you give something away for free, the expected quality level is something like "not known harmful".
When you buy software, for example a Linux distribution, you may expect that the distributor has tested the packages and that the software mostly works. Because you pay more for MacOS, you may just expect MacOS to work better.

Off course there has to come jurisprudence on all this, but I don't think that finding just one bug will entitle you to your money back. However, when the software won't work at all for you, the supplier can not hide behind EULAs and could be forced to compensate your damages... It will be a case-by-case balancing of responsibilities.

What a great idea. (1, Insightful)

Anonymous Coward | more than 4 years ago | (#27888583)

The one thing that has always pissed me off about this industry is no one is held responsible for their screwed up products. Unlike the Construction Industry where if you do shoddy work you get "Back Charged" for fixing you shitty work. The sad truth is if companies like Microsoft were held accountable for bad code we would not have the mess we have today on the Internet.

MS and others make too much money from the system being broken. Just think if MS had to pay YOU! ever time their system got infected or it died from bad code. There would be no more need for anti-whatever they would fix their system.

It all about hitting someone where it hurts. Since MS has no balls. Hit them in the pocket book.

Re:What a great idea. (2, Insightful)

sopssa (1498795) | more than 4 years ago | (#27888737)

However theres a little bit of difference on complexity on programming and constructing something (I know, constructing requires knowledge aswell, but not on so wide scale and on the same level of complexity)

Licensing and Accredidation (3, Insightful)

iluvcapra (782887) | more than 4 years ago | (#27888597)

If the EU wants higher-quality software, they should support an industry-wide system for the licensing and qualification of programmers, like we have for other engineering disciplines and professions. For example, they could require that all government software, or software for use in aircraft and life-critical functions. These developers wouldn't be "better" than anyone else, but they'd have taken an exam and be nominated by their peers, like a state bar.

If the software is developed by professional developers with licenses, it gets a big seal on it, and then people can choose to buy it or not based on the rep of the licensing body, and their risk tolerance.

Re:Licensing and Accredidation (1)

MathFox (686808) | more than 4 years ago | (#27888707)

You can license the developers, but when management pressures them to cut corners you still have shoddy software. It is a much better idea to make your suppliers responsible for delivering a quality product and put liability on them when they provide a shoddy one. The companies themselves will start thinking about testing, quality assurance and such; I am sure that looking at the education of the developers will be part of the list of measures considered.

It does accomplish it's stated purpose. (0)

Anonymous Coward | more than 4 years ago | (#27888607)

This law doesn't work and is evil.

It doesn't prevent software from being licensed as "use at your own risk", as most software is licensed.

It prevents the writer from engaging in the freedom of expression currently enjoyed, by forcing the licensing of all thought expressed, if published.

It mandates the imposition of insurance companies, and concomitant premiums, before thoughts, as programs, can be shared.

Two versions (1, Insightful)

grotgrot (451123) | more than 4 years ago | (#27888621)

The result will be two versions of software. One will be priced the same as today, with a detailed license agreement with you ultimately giving up those rights and a second version that sells for a million dollars a copy with those rights.

If it is free, you aren't liable (1)

erroneus (253617) | more than 4 years ago | (#27888633)

I think that is pretty obvious. The only time you would be liable is if you make a promise of some sort whether explicitly or implicitly. If it is free software and you offer to support it for money, you are also liable for your services... that's an ugly grey area. But the very notion that someone should be able to impose BSA tactics against your business while at the same time not be held liable for flaws in the product they are protecting with such tactics is pretty uneven. The "Because we say so" licenses that people click-agree or F8-agree to should be held to the same standards of other goods and services.

And here's the part I like -- if the "software industry" cannot survive under those conditions, perhaps they should not survive. Consumer protection laws exist because there is a need for them. To exempt a business that could not survive consumer protection laws otherwise would mean that they should be allowed to screw customers with lock-in, perpetual "upgrades" and abuse like that forever.

Any business should think CAREFULLY before making a promise in exchange for money. As it stands, the common EULA says "we make no promises, you give us money AND the right to audit your business's use of software."

It is all in the license.... (1)

anonieuweling (536832) | more than 4 years ago | (#27888677)

It is all in the license. This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details.

Re:It is all in the license.... (2, Interesting)

ljw1004 (764174) | more than 4 years ago | (#27888785)

Sure it's all in the license at the moment. The question is whether we as a society are happy that these are valid licenses.

We don't let doctors do surgery with the EULA-like conditions that "anything they do is at the users own risk and the doctor isn't held to any standards."

We don't let engineers build bridges with the EULA-like conditions that "the bridge is delivered as is and people drive over it at their own risk."

Why do we allow software to get away with such a cowboy attitude when we're more rigorous about other important infrastructure?

Or, why are we so up-tight about doctors and civil engineers when they should have the same laissez-faire setup as software engineers?

Re:It is all in the license.... (0)

Anonymous Coward | more than 4 years ago | (#27888791)

And if that clause is made illegal by LAW (which I imagine this proposal would do), what then?

What is this concept of "consumer rights" anyway? (0)

Anonymous Coward | more than 4 years ago | (#27888717)

If I go to the store and purchase a calculator with a broken display, why should I have the right to get a refund once I realize that it's broken? Unless there's clear deception the seller owes the buyer exactly nothing.

Why would this affect free software coders? (1)

imkonen (580619) | more than 4 years ago | (#27888719)

"...they purchase a good: the right to get a product that works with fair commercial conditions,'...but where would this idea leave free software coders?"

I get that free as in beer != free as in speech, but there is a pretty high correlation, and really this article is trying to imply that if I give software away for free as in beer I can be liable to the person who "purchased" my software license. Are they really trying to suggest that the ubiquitous line in almost every free as in beer software along the lines of "hey I'm giving you this software for free, so I'm not liable" isn't legally valid? I mean if the only condition I ask of you when you use my free software is that you not expect it to be bug free, how can you sue me for damages? I didn't make anything remotely resembling a guarantee. You still have the choice not to use the software, just like you have the choice not to purchase any software with licensing conditions you are not willing to accept.

I mean I didn't read the text of the proposed law itself, but does seem like the idea that it will affect people who give away software for free is kind of a paranoid worst case scenario, and should be assumed to be false unless otherwise clearly stated, not the other way around. The text that was quoted in the article, "Licensing should guarantee consumers the same basic rights as when they purchase a good: the right to get a product that works with fair commercial conditions." hardly seems controversial or applicable to free software. Sure, if you sell software for mission critical / safetly applications and your buggy software gets people hurt, you should held liable. Alternately, if you give away for free a DVD player which skips, ignores every other button and dies after 4 weeks, you can't be sued for damages.

The Number of Uses (1)

saterdaies (842986) | more than 4 years ago | (#27888731)

The problem with guaranteeing software is the number of uses that it can have and the number of different environments it can be used in.

Well, it's not necessarily a problem of software. If we look at the PlayStation/Wii/Xbox model, there is the potential to offer a guarantee there. Users are really only allowed to run things certified for the platform, one at a time, etc. That makes it at least *possible* to create a guarantee.

The problem with computers is that it is impossible to create a guarantee like this. Different programs do sometimes interfere with each other, people can and do use them improperly in a way that they are the source of the problem, and nothing is certified.

To go back to the toaster issue: what if toaster manufacturers had to certify that their toaster would work (or at least not break) with any input? I decide to put a knife in there and rattle it around, I decide to dump it in the bathtub, etc. and it still has to work. Well, software is somewhat like that. I'm putting all sorts of unknowns in there and so no one can certify that it will *just work*.

Heck, would you hold a toaster manufacturer accountable if someone put a bagel too large in one of the slots? Of course not. There's a logical thing there where it's the user's fault. However, in software it becomes more murky. We often don't know what is a valid use of software until someone tries it. I guess we could offer a similar guarantee - our software will work properly for everything that it works properly for. Which really is the same guarantee that the toaster is offering. It's just that the toaster has much more limited and known uses.

I guess an easy way to get around this is to claim that your software has only one "proper" use that is guaranteed - to use up some CPU cycles. Any use beyond that is "improper" use akin to throwing a toaster off your roof. Users can use it for those cases, but they won't be covered.

The article is "scareware" (1)

davecb (6526) | more than 4 years ago | (#27888739)

The proposal is to give licensees the same kind of protections as buyers, to close off the scam of "licensing" a product with more restrictions than allowed when selling it.

The writer just wanted to get more attention, so he puffed it up with an imaginary threat to developers.

--dave

Europe once was led by merchants and ship captains (0)

Anonymous Coward | more than 4 years ago | (#27888745)

Now it seems to be about lawyers and government bureaucrats.

This is not always bad, when the efforts are properly channeled and directed, e.g. automobile emissions and safety. But when these folks start controlling every export industry, well, that's enough to start turning people into Republicans.

Re:Europe once was led by merchants and ship capta (1)

A beautiful mind (821714) | more than 4 years ago | (#27888895)

There was a recent article in The Economist about how in democratic countries the politicians are mostly lawyers and doctors by profession, while in dictatorships it's mostly technically oriented people. Ah yes, here it is [economist.com].

I would say: (1)

drolli (522659) | more than 4 years ago | (#27888765)

Yes, when the consumer pays for a service, like providing an tested Software, where the distibutor promises a certain function, several thing should happen

a) A distributor should have mandatory documented testing standards, where the documentation is public to the users (before buying).

b) These testing Standards should be formulated in terms of an ISO norm. E.g. Tests, source code review, etc. should be formulated as clear statements.

c) There should be a simple label system classifying highly speacialized (and qulity assured software) vs. broad function (but not so well tested) software. An free open source would be an extreme case of the latter one.

d) the difference in liability should correspond to usual goods. While i can buy an Radio clock and sue the manufacturer if it does not function i can not buy a do it youself set, fuck up and then sue. While instant foods which taste unedible may be a case for returning them i thik if you fuck up when cooking your pizza, nobody will accept the return.

e) Yes, i would appreciate if companies could not restrict their liability to situations which require the planets to be in perfect alignment and a pink hedgehog running over your table.

A timely fix or your money back? (1)

t2000kw (1066988) | more than 4 years ago | (#27888775)

If software developers had to provide a timely fix or your money back (their choice), the free software developers would be free from legal liability. Or just make the law apply to non-free software. I see one issue with the law. Let's say program 1 and program 2 conflict with each other in some way, maybe making the OS freeze, freeze the program, or freeze the other program, or both programs freeze when both are running. Program developer 1 says it's program 2's fault, program developer 2 says it's program 1's fault. An example is that I cannot get my Canon ZoomBrowser EX software for my digital camera to work,a nd to date their support people have not (yet) been able to help me fix the problem. (I can import and view pictures with either Windows Photo Gallery or use Fspot in Linux without any trouble.) Since it worked a while ago (I hadn't used it for a while), it is probably a conflict with another program. I can see each developer saying that it is the other program that is the problem. Even Canon mentioned that I might have to disable any drivers that access a scanner, like my MP210 multifiunction printer, scanner, and copier (I didn't have the driver installed at that time since it wouldn't install-another issue that I fixed myself since then). In this case, if I was not satisfied with the crashing picture browser software, would I be eligible for a complete refund of my camera, or would the software be considered "free" and therefore the company would not be liable for the problem? I can see this would be more a Windows software related problem than in Linux, and probably not common in the Mac OS either. This law could stifle innovation, I think, if some limits are not placed on how liable the developers are, and if the individual coder is to blame, it will possibly cause even more problems. Good coders would require higher salaries, and that might drive software costs up. Then again, maybe this would get rid of the bad coders and solve the problems we're seeing in poorly coded software.

If it is closed source, yes. (1)

houghi (78078) | more than 4 years ago | (#27888779)

If I do not allow anybody to see what I do, then surely I am alone responsible for the code.

If I let the person see the code, they they would be responsible for accepting the code.

It's time for software to grow up (1)

Animats (122034) | more than 4 years ago | (#27888797)

It's time for software to grow up.

I proposed this in 2000 as a penalty for Microsoft in their antitrust trial. [animats.com] That would have been a big step forward.

The claim that "the vendor doesn't know the environment in which the software will be used" is bogus. Car companies have no idea where you will drive your car, or on what kind of roads. They have a far worse problem than any software maker. Yet they have to accept serious liability obligations.

Provided that this is implemented as a constraint on commerce, it's not an issue for free software when distributed for free. However, companies that package up free software and resell it (Red Hat, Novell, etc.) will face liability. That's as it should be.

Re:It's time for software to grow up (1)

iamhigh (1252742) | more than 4 years ago | (#27888931)

So if I drive 10,000 miles on a road covered with potholes and the wheels fall off, it is the car manu's fault? Didn't think so. Furthermore, software can be placed on a computer with millions of other types of software. Cars are pretty well self contained. By your measure, an accident would be the fault of the manufacturer. Please improve future analogies.

When your code kills someone (1)

googlesmith123 (1546733) | more than 4 years ago | (#27888813)

What about when you mess up the code for an x-ray machine and end up giving the patients 10 times the normal dose of radiation. Shouldn't the programmer be liable. The simplest solution to this problem is insurance similar to doctors malpractice insurance.

Good idea (1)

JustNiz (692889) | more than 4 years ago | (#27888821)

They should make the maximum penalty be that if you have a problem with the software, you are legally allowed a full refund of the purchase price, and the right to full access of the source code.

Imagine what that would do to Microsoft and the Open Source communities respectively.

Warranties of Fitness and Merchantability (1)

Telephone Sanitizer (989116) | more than 4 years ago | (#27888843)

There are laws on the books for this already.

They are called implied warranties of fitness and merchantability.

In most states in the U.S., these warranties can only be waived under certain conditions so software licenses don't necessarily absolve mfrs and merchants of responsibility.

Basic info:
http://en.wikipedia.org/wiki/Implied_warranty [wikipedia.org]

I guess that the reason this is newsworthy is that EU directives harmonize European laws, which are presently quite diverse on the matter.

Depends on what you call 'damages' (1)

nurb432 (527695) | more than 4 years ago | (#27888847)

If you cant get your taxes e-filed due to a crash, its no different then not being able to get to the post-office due to your car not starting because of a defective battery.

Sure, you should be able to return/exchange the product as being defective but you don't get your IRS fine paid.

And we are talking consumer grade products here, if its specialized there should be some severe penalties if the product doesn't perform. ( such as a heart monitor for example )

Attractive Nuisance (1)

hwstar (35834) | more than 4 years ago | (#27888849)

No good deed goes unpunished. I would not like to see free software be labeled as an "attractive nuisance" and an environment where users could litigate against free software developers. This would kill free software.

Read what it says not what you want it to mean (1)

Dunbal (464142) | more than 4 years ago | (#27888859)

but where would this idea leave free software coders?
From the same header:

licensing should guarantee consumers the same basic rights as when they purchase a good

When you obtain "FREE" software, you do not "PURCHASE" anything. The damages obviously do not apply - in a sane world.

Lets take this further (1)

RebelWithoutAClue (578771) | more than 4 years ago | (#27888879)

How about making Lawyers legally liable for any mistakes they make in court, or errors in their contracts ? Or Legislators liable for bad legislation ? Or Researchers legally liable for errors in their research (say medical) ?

The real concern is insurance rates (1)

Exp315 (851386) | more than 4 years ago | (#27888883)

Complex products are always going to have bugs and imperfections. That goes for cars, consumer electronics, etc.. There should be nothing special about software. Most products are sold with a disclaimer of liability for consequential damages, such as business losses due to product not working. In most cases the liability for "product not suitable for intended purpose" is limited to refund of the purchase price, which seems fair and reasonable to me, and offers adequate protection for free software. The problem is that in most jurisdictions liability disclaimers cannot protect you from consequential damages arising from safety defects, such as a software product which accidentally kills people by adjusting medical radiation dose too high in cancer therapy. In such cases you might be held liable unless you have made very clear disclaimers limiting how your software should be used. What about less serious cases such as your software product malfunctions and erases the user's hard drive, or fries a device connected to the computer? That's a tough one. Maybe the seller, distributor, and/or developer of the software could be found liable. I sure hope not, because the reality is that if such a thing is even possible, insurers are going to slap us commercial software sellers with a huge increase in liability insurance. This already happened once about 5 years ago, but fortunately the fuss died down and insurance rates went back down again.

Nice idea, but... (1)

BoneFlower (107640) | more than 4 years ago | (#27888903)

The modern general purpose computer, even Macs, are very open products compared to typical consumer goods.

A CD player is a CD player. It has to work properly with itself, and CDs. Even componentized systems have a very limited environment within which they have to work. Precisely defined interfaces in and out, and they are limited in number.

A general purpose computer program though, is another beast entirely. There are thousands, if not millions, of other programs that they may have to coexist with. Most only need to worry about one OS, though with Java getting more popular for general applications, there might be several OSes to consider. And hardware... Even with Macs, there are several different models with different hardware configurations, and wierd stuff occasionally happens between them.

And then you get into end user use patterns and configurations. It's really a miracle that software is as reliable as it is, it really shows how good the compiler/linker/OS people are, even on Windows, given that it all mostly works in the real world.

A liability law is a nice idea, but this stuff would ahve to be taken into account.

Coders should not be liable (1)

mysidia (191772) | more than 4 years ago | (#27888917)

Personally for their code.

But companies should be liable if they produce a software product, and the product does not work as advertised.

Their liability should be limited to the amount the consumer paid for the product.

Plus liable for the costs required to remove the product that didn't do what was needed. UNLESS they knowingly distributed a product containing the bug without a prominent up-front warning about the specific issue, before allowing the purchase.

I.e. If the product was difficult or impossible to uninstall, they would be liable for reasonable costs involved in "cleaning up" and executing the uninstallation.

But not to exceed the cost of rebuilding a system that meets the software's system requirements for use from scratch.

That means if an accidental bug in the program destroys all your data, you're still responsible for having a backup; you can return the software, but they don't pay for the downtime, or the loss of data.

To fix our SW, buy the upgrade! (1)

CityZen (464761) | more than 4 years ago | (#27888981)

This is apparently Microsoft's solution to fixing bugs: require you to buy the upgrade to the next version. When Outlook crashed recently, the dialog box that came up afterward told me I could click on a link for a fix to the problem. The page that came up said I should buy the upgrade.

I'd be happier if Microsoft would just fix the damn software I bought, or else offer the upgrade for free. I don't want to pay for software that they know doesn't work.

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