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Microsoft Government The Courts News

Why Can't Microsoft be Sued Under the Lemon Law? 210

Posted by Cliff from the is-there-a-lawyer-in-the-house dept.
briant97 asks: "Microsoft is sitting back making all this money by charging for desktop and server operating systems. If you go for a server, they also add additional charges through client access licenses. Well, now that they've charged you all this money they leave their software open to viruses and exploits beyond belief, which will cost your company even more money. When will it stop? When will Microsoft become liable for their actions? I mean they are making billions while costing other companies billions. Ford, Chevy, and all other car manufactures get held liable if they make a defective product, why not Microsoft?" One can argue that you sign away your right to seek damages from Microsoft, by agreeing to the EULA, however there is still this issue as to the strength of a EULA since they've never been tested in court. How do you feel about this subject? Should software owners be allowed to "sign" away their basic rights via click-thru licensing, or should software manufacturers be liable for the critical defects that show up in their software?
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Why Can't Microsoft be Sued Under the Lemon Law? More

Why Can't Microsoft be Sued Under the Lemon Law?

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  • Lemon Law (Score:5, Insightful)

    by arrow ( 9545 ) <mike.damm@com> on Monday June 28, 2004 @05:42PM (#9554974) Homepage Journal
    My first guess would be because the "Lemon Law" only covers cars.

    From http://www.mylemon.com/faq.htm:
    What types of products are covered by the Lemon Law ?

    All motor vehicles primary used for personal use are covered under the Pennsylvania and New Jersey Lemon Law.
    • Oh sure, let a silly thing like legality dictate what the law can do.

      So while the lemon laws might not fit, I'd suspect some sort of action could be run through the Better Business Bureau [bbb.org]. What exactly you'd try to nail them with is up to you. I'm more of an idea man.

      • BBB (Score:2, Flamebait)

        by mattdm ( 1931 )
        The Better Business Bureau is a joke. They're not a pro-customer organization -- they're a *business* organization. Their job is to make complaints go away. Any complaint which isn't immediately quantifiable as directly lost money will be dismissed out of hand. And any complaint which does involve money, they'll try to resolve -- as the company's advocate, not yours.

        Several years ago, I tracked down a spammer with a clearly fraudulent make-money-fast scam, and filed a complaint with the BBB. They didn't ac

  • I'm also feeling addicted to Windows (Score:4, Funny)

    by fluor2 ( 242824 ) on Monday June 28, 2004 @05:42PM (#9554983)
    I'm also feeling addicted to Windows. And they pushed this on me when I was a kid.

    Just like smoking.

  • slippery slope (Score:5, Insightful)

    by voisine ( 153062 ) on Monday June 28, 2004 @05:45PM (#9555016)
    Just remeber, if Microsoft is held liable for it's products in spite of the EULA, it's only a matter of time before other software comapanies and eventually open source authors will be sued for the same. Are you really so eager to jump headlong into the new world of software liability litigation?

    • Re:slippery slope (Score:5, Interesting)

      by Radical Rad ( 138892 ) on Monday June 28, 2004 @05:57PM (#9555168) Homepage
      Are you really so eager to jump headlong into the new world of software liability litigation?

      It's bound to happen eventually. And I have to believe that the liability for software would not exceed it's purchase price unless there are punative damages for gross negligence. I was told by an engineer who sometimes works as an expert witness in product liability suits that it's very hard to prove negligence, so I don't think Joe College-student who is giving away his Free and Open Source project for free would be affected.

      • Re:slippery slope (Score:3, Insightful)

        by Anonymous Coward
        On the other hand it's not hard to imagine a lawyer arguing that allowing anyone to contribute to a product's code without knowing anything about them could be negligent on its face.

      • Re:slippery slope (Score:4, Insightful)

        by Bastian ( 66383 ) on Monday June 28, 2004 @06:41PM (#9555578)
        But do you really want Joe College Student, who has a big fat two digit number in his pocket and a big negative five digit number on his student loan to be exposed to the risk of getting sued over some barely-tested and half-broken piece of software whose source he posted to the web incase somebody else wanted to work with it?
        • In the US, you can sue anyone for anything. So, the only thing you can do to stop being sued over released software is to not release software. I'd go a step further; it's possible someone could steal and distribute your software and you'd be sued over it, so you really can't make software if you don't want to be sued over it. It's still the case that actual damages (ignoring lawyer fees, which is probably the biggest hit), assuming you lost, would only be relative to the cost of the sale unless it was i
        • Surely in that case the purchase price of the software would be zero, in which case accordingly to the grandparent's plan, the student would be liable for zero.

          • The point he was trying to make was that even though the student may win in court, he likely won't have the resources to go up against a large company in court.
      • I second this as well. IMHO it seems more people are focusing more on tighter less buggy software. Might the manufacturers see this change coming as well?

      • Re:slippery slope (Score:5, Informative)

        by 13Echo ( 209846 ) on Monday June 28, 2004 @10:19PM (#9557006) Homepage Journal
        Considering that nearly all GPL/Free/OpenSource software says that "THERE IS NO WARRANTY" (etc, etc), your claim is without merit.

        Even Microsoft will not be liable for their software defects. They make it perfectly clear in their own license (their exeption is refunds and replacement of the software).

        Kinda debunks that concept about paying Microsoft licenses for the sake of having a liable software provider, doesn't it?



        NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To

        the maximum extent permitted by applicable law, in no event shall

        Manufacturer or its suppliers be liable for any damages

        whatsoever (including without limitation, direct or indirect

        damages for personal injury, loss of business profits, business

        interruption, loss of business information, or any other

        pecuniary loss) arising out of the use of or inability to use

        this product, even if Manufacturer has been advised of the

        possibility of such damages.

    • Re:slippery slope (Score:3, Insightful)

      by silverbolt ( 578120 )
      Exactly. Microsoft is just being singled out because they are making all this money. No software program, not even your $FAVORITE_DISTRO, is foolproof. Holding software developers/companies accountable is not feasible nor advisable. Best to let market decide which ones to prosper and which ones to push to oblivion.

      • Exactly. Microsoft is just being singled out because they are making all this money. No software program, not even your $FAVORITE_DISTRO, is foolproof. Holding software developers/companies accountable is not feasible nor advisable. Best to let market decide which ones to prosper and which ones to push to oblivion.

        And what if we replace the appropriate nouns with Ford, utomobiles, and automotive manufacturers? The problem is that consumers are not and never will be knowledgeable enough to judge softwar

        • Re:slippery slope (Score:4, Insightful)

          by Grab ( 126025 ) on Tuesday June 29, 2004 @06:19AM (#9558557) Homepage
          No, lemon laws exist to protect consumers from bad products where the "badness" is very easy to quantify. If a 2-litre Ford engine doesn't pull as well as a 2-litre Honda engine, you have no rights under the lemon laws. But if it bursts into flames, *that's* where the lemon laws can come into play. And it's very easy to determine whether an engine has burst into flames or not, I think...

          And what do auto manufacturers do? They recall the cars and modify them. Put simply, they upgrade them. What does MS do when there's a new Windows vulnerability? Exactly the same thing.

          Grab.

    • Re:slippery slope (Score:3, Insightful)

      by isaac ( 2852 )

      Just remeber, if Microsoft is held liable for it's products in spite of the EULA, it's only a matter of time before other software comapanies and eventually open source authors will be sued for the same.

      Of course there's a big difference between the GPL and a EULA. A EULA imposes additional terms upon the buyer after a sale! This is, of course, redonkulous and utterly unenforceable. The consumer software buying process goes like this - you go to store, you pay your money, you walk out with a box of soft

    • Re:slippery slope (Score:3, Insightful)

      by NanoGator ( 522640 )
      "... it's only a matter of time before other software comapanies and eventually open source authors will be sued for the same."

      For the record, I'd never ever contribute anything to the Open Source Community if I would be held responsible for the criminal act of another party.

      Here's the problem: Viruses don't write themselves. It'd be like suing Ford because somebody put sugar in your gas tank.

      • It'd be like suing Ford because somebody put sugar in your gas tank.

        It would be more like suing Ford because the factory installed locking gas cap doesn't actually lock BY DESIGN.

    • Re:slippery slope (Score:2, Interesting)

      by hotpotato ( 569630 )
      Just remeber, if Microsoft is held liable for it's products in spite of the EULA, it's only a matter of time before other software comapanies and eventually open source authors will be sued for the same.

      Not so sure about open source: When you use a Microsoft product, you pay them for it. With this in mind, you can discuss what sort of liability they have. OTOH using open source products is free, so using them is like using a knife someone gave you for free: If you cut yourself, it's your problem.

      Of cou

      • Re:slippery slope (Score:2, Insightful)

        by bnet41 ( 591930 )
        But I don't think it's su ch a bad idea that such a developer be held liable for her code.

        Until it's you being held liable. Sadly, all it takes is one little mistake.
        I do think there needs to be some type of software liability laws, but they are going to have to be like nothing else out there, basically a totally new concept.

    • Re:slippery slope (Score:4, Insightful)

      by pla ( 258480 ) on Monday June 28, 2004 @09:46PM (#9556840) Journal
      Just remeber, if Microsoft is held liable for it's products ... eventually open source authors will be sued for the same.

      "Lemon Laws" basically let you get your money back on a defective product.

      So, keeping to that idea - Sure, I'll gladly refund the purchase price of $0 when a program I write fails to work for someone.

      Similarly (as a freelance contractor), if someone pays me to write a program, and it doesn't work... Well, I don't suppose I'd get paid, would I? So why should Microsoft (and any other commercial software house) not have to live up to the basic standard of "works as advertised"?
    • The architects, engineers and contractors who design and build bridges, buildings and other structures accept a certain responsability, for that matter so do plumbers and electricians.

      Of course, someone building a shed or a doghouse is exposed to less liabilty than the builders of a n office tower in earthquake territory.

  • As is.... (Score:3, Interesting)

    by passthecrackpipe ( 598773 ) * <passthecrackpipe AT hotmail DOT com> on Monday June 28, 2004 @05:47PM (#9555035)
    because software is traded "as is" - first of all, there is no transfer of property, so there is no sale, hence most consumer protection laws don't apply. Second, consumer protection law is there to protect you being fooled by dishonest tradespeople. Since it is sold "as is", and moreover, since the only people left on this planet that don't know that Windows is a stinking pile of crap is some lost tribe in the dark jungle of borneo, you can't really claim to have been tricked now, can you?

    Just don't buy it to begin with.....

    • Re:As is.... (Score:3, Insightful)

      by schon ( 31600 )
      there is no transfer of property, so there is no sale

      Bullshit. If there was no sale, then the store is liable for fraud - because they sold it to me. And if you wanna go bark up that tree, you'll find that MS sells the software to them, so MS would also be liable for fraud.

      Just because you've fallen for the EULA propaganda, doesn't mean it's true.

      • Re:As is.... (Score:3, Informative)

        by Grab ( 126025 )
        Bullshit on you.

        The only sale is a bit of physical media. You can do with the CD itself what you like. If you want to play frisbee with it or use it as a coaster, MS isn't stopping you.

        But the software, they just sold you a license to use it. Nothing more, nothing less. You go to Hertz and pay the rental price, you aren't being sold the car, are you? You're being sold a license to use it under certain conditions (one condition being that you give it back after the hire period).

        I don't say it's good,

        • Re:As is.... (Score:4, Insightful)

          by nagora ( 177841 ) on Tuesday June 29, 2004 @09:22AM (#9559241)
          But the software, they just sold you a license to use it. Nothing more, nothing less.

          Bullshit again. Where's their signature? Where's mine? What is the term of the license and how do I renew it or cancel it? Which company appointed agent negotiated the terms of the license with me?

          When you buy a copy of Windows, that exactly what you do under the law as it stands. Software vendors have not quite managed to change that yet so they just pretend they have in the worthless EULA's that they produce.

          no doubt some aren't, but they've not been tested in court any more than the GPL ever has been

          The GPL's been tested millions of times in courts: it's called copyright. That's the crucial difference between, for example, MS's EULA and the GPL - the GPL gives you MORE rights while MS is trying to get you to sign AWAY rights (without signing). That's a huge difference when it comes to court. You don't have to sign something to agree to having more rights!

          If you don't understand the license and click "I agree" anyway, that's your problem.

          No it's not. If I have to yodel to get MY software to install then that's what I'll do. If I have to press a button marked "I Agree" then I'll do that too. Makes no odds: I still own the program just as much as I own my toaster. If the seller thinks that their pseudo-legal claptrap binds me any tighter than copyright law, then that's their problem.

          TWW

  • exploder (Score:2, Interesting)

    by Scottarius ( 248487 ) *
    well for one thing, my server is not going to hurtle out of control and kill a bus load of nuns if it's defective.

    • Re:exploder (Score:2, Interesting)

      by adam mcmaster ( 697132 )
      That really depends if your server is running any kind of system which could be dangerous; if your server is defective, for example, and is in control of a rail signaling system, it could easily send a train hurtling out of control.

      • Re:exploder (Score:3, Insightful)

        by Scottarius ( 248487 ) *
        very true. But I would assume (or at least hope) that servers that control systems that could mean a life or death situation if they fail would be monitored much more closely with more failsafes than your average web server.

        Which brings up an interesting questions. Does it matter as much what caused the malfunction as how you were using it when it happened? Say I'm driving my car 130mph down the freeway when a faulty tie-rod end breaks causing me to carom around the freeway createing a 20 car pile up.
      • Except that the MS license says it's not to be used in safety-critical applications. If you do use it in a safety-critical app, that's your problem and not MS's.

        Grab.
        • I beleive (though I do not offer legal counsel), that in the UK a consumer sale is different from a business transaction.

          A consumer sale is not subject to an EULA, since they walk into a shop, pick up a box based on the flashy colours and title "Microsoft Doodaa: manage your doodaas more effectively", and pay for it. Even small print on the back may not apply since an old biddie with poor eyesight is expected to buy things without reading everything. It also means that if the box is labelled to indicate su

  • Re: (Score:2, Informative)

    by account_deleted ( 4530225 )
    Comment removed based on user account deletion

  • They should be liable (Score:4, Insightful)

    by kommakazi ( 610098 ) on Monday June 28, 2004 @05:50PM (#9555069)
    EULA's shouldn't be able to take away a consumer's basic rights as many basically do these days. If you buy a product you expect it to work as advertised and not be defective. It seems only software companies are able to get away with selling defective products by tacking on long EULA's to them. Why don't car companies tack EULA's onto their vehicles saying if it's defective, you're SOL? Because nobody would put up with it, they'd go find another car without one. Nobody would put up with that on about any other product except software. I strongly agree people should stop letting software companies shove defective software down their throats. I say people challenge EULA's at all *reasonable* opportunity... EULA's should simply be an agreement that you're not going to reverse engineer their product or distribute it illegally and such....not forcing you into agreeing that the software is probably defective and that you're going to be the one paying out your ass for it.
    • "It seems only software companies are able to get away with selling defective products by tacking on long EULA's to them."

      Duh. They get away with it because they cannot guarantee the environment in which the software is run. Do you think your car would have a stellar warranty if there were no roads?

  • Because it would be bad for everyone... (Score:5, Interesting)

    by Dimwit ( 36756 ) * on Monday June 28, 2004 @05:52PM (#9555101)
    If software had to live up to safety standards the same way physical products did, the authors of the software could be sued just like the makers of the physical products.

    "But that's great!" you say. "Microsoft could be sued until they were just bits of blackened rubble!"

    Yes, that would be wonderful.

    Now, what about the floating-point exception handler bug in Linux? Well, looks like we'd have to sue Linus et al.

    I'd be willing to bet that Microsoft would take a lot longer to reduce to rubble than Linus and his ragtag crew of happy software authors.

    Even if you limit it only to software that's charged for, well, then, good bye RedHat. Ditto Mandrake. Bye SuSe. It's all over.

    Basically, if the authors could be sued, then there would be no software industry.

    I know the question was also asking why they couldn't be sued for allowing viruses in. Well, why can't Ford be sued for letting me drive my car on roads? There are *wrecks* on roads! What is Ford thinking??

    The point of this whole rant is: Software is far, far to complex to be held to the same standards as physical products. Mankind has been making physical products for around 200,000 years now (if not more). We've been making software for 50. Let's wait until we have the same kind of experience making these products before we hold them to the same standard.
    • Now, what about the floating-point exception handler bug in Linux?

      But how much did this particular bug cost the industry? This would be the maximum liability. And obviously only the vendors would be liable; They're the ones selling it as a working OS suitable for certain purposes. There is only an implicit warrenty once you charge for it.

      • But how much did this particular bug cost the industry? This would be the maximum liability.

        I have a couple of problems with this metric:
        1. First of all, these numbers are always inflated. Do you really believe that worm X cost the industry $2.5 bil? Those are numbers that are calculated using estimates like the average amount of time lost per employee, or an average of how long it took to recover from it. These numbers are multiplied by other estimated numbers (number of companies out there * numb

    • Let's wait until we have the same kind of experience making these products before we hold them to the same standard.

      Well, by that logic no one should sue aircraft manufacturers either, as airplanes have only been made for about 100 years. But yet it happens.
      You can't cop out of liability by saying "my product is too complex for me to build properly." That's crap and you know it.

      If it can cause the same kind of damage as a physical product, then it should have the same liability as a physical product.

      I

  • Isn't a License Agreement what protects the developers of GPL'ed software from being sued as well.

    Given, the GPL is not a EULA (End User License Agreement) -- the GPL only takes effect if you modify or distribute the application -- it still seems if it was tested and failed in court, it could have a big impact on OSS.

    What do you think?
    • It's been discussed before.

      The prevailing wisdom is that the GPL only grants rights. It doesn't take them away. Hence if it was ruled invalid, anyone who distributed GPL software would be guilty of copyright infringement.

      For much the same reason, it is quite unlikely that all clauses in an EULA would be invalidated. The part that permits you to install it on a machine would have to remain valid.
    • I believe the "NO WARRANTY" stuff is unrelated to the GPL. You will find identical wording on commercial, BSD, and public domain software, and on sample code distributed with closed programming environments. Whether this is valid or not is probably unrelated to whether the GPL works or not.

      My opinion is that if software writers were liable for damages it would be the end of the software industry, including open source. Microsoft may last the longest but even it would be destroyed by litigation. All softwar
    • It would have a big impact, but not in the way you think. Copyright would revert back to whoever originally wrote the code, so an author of some code in the linux kernel could decide to remove it. Microsoft wouldn't be able to embrace and extend though.

      I dont see how the license would fail though.

  • Well (Score:2)

    by ADRA ( 37398 )
    Any attack on click-through licensing means that open source software is more open to the same legal punishments. If someone found a disasterous bug in Linux, would people have a right to sue Linux,OSDL, etc.? I bloody hope not.

    Now the problem is that companies buying software don't require full guarantees. If the DOD says this software must be perfect, then its the onus on the Seller to supply that guarantee.

    This allows for open source companies to guarantee software without forcing every Linux distribut

  • This is ridiculous (Score:5, Insightful)

    by torinth ( 216077 ) on Monday June 28, 2004 @05:54PM (#9555127) Homepage
    When desktop and corporate customers are willing to wait 10 years for products that incorporate new technology, we can talk.

    Microsoft is being no more negligent than their competitors would be. Businesses recognize the risk of using Microsoft, Apple, Sun, third-party or OSS software, and balance that against their need to actually use recent innovations. The end result, a fast life-cycle on development and rather unreliable products. Businesses suffer losses when software is compromised, but that's built into the cost of getting software years before it could be released otherwise.

    If consumer advocacy laws applied to software development right now, you'd see innovation plummet. What few developers that would bother with top-notch reliability (which is comparitively boring) would still take years to create something after the idea was publically announced.

    Meanwhile, some black market developers would create the same function in some illegal and wholly unsupported product, but businesses would buy it up like crazy.

    The reason that these kinds of regulations are important with cars and pharmaceuticals is that these industries put people at risk to their lives. A flaw in a car will kill people. A flaw in software will cost a company some money, but is a threat that can be overcome through market practices. The company insures against damage, pays a premium, and gets reimbursed on loss. Nobody dies. Big fricking deal.

    Businesses where reliability does matter (i.e. infrastructure and medical projects) go further and independently make sure they only use software that has gone through the ropes. This software tends to evolve more slowly, or else has a disproportionate amount of money thrown against it to speed things up.
  • How can I as a software developer take responsibility for loses when i use libraries etc that wont? oh and it would kill oss, you could say this code is just text that happens to compile, but unless everyone compiles thier own software, it'd never work.
  • Consumer protection laws, as I understand the situation, do not quite cover end user. Ownership transfer isn't taking place - end user signs EULA to get a grant to use someone elses product, in this case Microsoft's.

    I'd rather be willing to explore the possibilities to sue people who make decisions to license half-assed products, waste additional money on AV software and man hours to keep holes closed, employ incompetent administrators which results in wasting everybody's money and time when Internet links

  • Think of it like a car. (Score:5, Insightful)

    by man_ls ( 248470 ) on Monday June 28, 2004 @06:26PM (#9555435)
    Think of it like a car.

    My 1998 Honda had a problem with the ignition that, if a certain combination of environmental factors, driving habits, and the phases of the moon and planets all combined correctly, the contacts would corrode under the extreme voltage and cut power to the engine while in operation. Their response: Take the car to a dealer to have the ignition switch replaced free of charge.

    I.e.: This otherwise safe and well designed car has a small flaw that under certain conditions may manifest itself in a potentially annoying to potentially dangerous way, depending on what you are doing.

    Now, let's pretend it is a computer.

    Your well-engineered and hardened security Windows 2003 Server system has a flaw in a protocol parser that allows, with the right combination of messsages, someone to cause code to be executed on your system.

    In other words: This otherwise safe and well designed server operating system has a flaw which, depending on several factors, may manifest itself in an annoying or dangerous way.

    Any complex system is going to have problems with it. Millions of lines of code, or hundreds of thousands of moving or conductive parts, each can have something fail if there's a tiny problem with it.

    Microsoft releases their fixes free of charge, just like a dealer service recall on an automobile.

    What's the problem here? You can eliminate 95% of these vaunerabilities by simply *not running without a firewall* and *not running unneeded services* which is (GASP) something you'd do on Linux as well. Linux is just as vaunerable if it's sitting open and unprotected on a network with 500 services running as root. Would you do that? No. So why do you do it with a Windows box?

    If it's because Windows is more of a "turn-key" solution, and the user doesn't think to secure their box, it's not Microsoft's fault, the blame rests surely in USER ERROR.
    • I agree with you, but to go even further:

      The Honda problem didn't require any deliberate evil intent on the part of a third party to create it, but exploiting the OS vulnerability did.
    • Microsoft releases their fixes free of charge, just like a dealer service recall on an automobile.

      I'll probably get flamed for this, but a better example would be not that the system breaks on it's own such as the faulty ignition switch given in the example, (BSOD defect) but both the Honda and the MS OS are favorites for thieves simply because they are both easy to break into and steal. When was the last time your Honda dealer had a recall simply because the car was a popular target for car thieves? Th
      • I'm not sure I agree with your way of looking at it, but I definately understand where you're coming from.

        Windows until recently wasn't built to be attack proof. MS wised up about the "big city" deal with their 2003 server release, hardened to the bone.
    • Anybody who runs services as root on any *NIX is an idiot. I have several Solaris and one Linux box sitting in the wild and NONE expose services running as root. They may be launched *from* root, but they ALL su to a non-root owning account.

      Case in point, I rescued a box a few years back that some know-it-all had gone and edited /etc/passwd by hand and screwed up the root shell entry. It was pretty much game over for this box since root was completely unaccessible. They had a local account that I used to

  • It wouldn't work (Score:5, Insightful)

    by MerlynEmrys67 ( 583469 ) on Monday June 28, 2004 @06:42PM (#9555579)
    There is software that provides these kinds of guarantees... Problem is the guarantee is almost worthless.

    Lets first talk about supported hardware configurations.

    Before I would allow certain liabilities like this, I would require a given supported configuration. Lets say something like a Pentium 4 processor running at 3Ghz - without HyperThreading, A Chipset, a single graphics card (make it old too), a single hard disk from one manufacturer - the list goes on (well in reality - the list doesn't go on). Your hardware isn't in the supported configuration (You did buy directly from Dell didn't you ?) forget the support, it isn't a tested and qualified system.

    Software configuration

    You weren't going to install ANY other software on your system, other than mine... How do I know that THAT software didn't cause the problem - so nix any software purchases - or that will void the warantee as well.

    So basically you end up with a supported system, that is completely useless. Not much fun at all. And you WANT to have this happen by getting lawyers involved ?

  • It would be a real killer for software in general if developers were liable for damages caused from malfunctioning code. Therefore, licenses that disclaim warranties are really important.

    If there were enough demand for it, you'd expect software companies that are developing for pay to warranty their code. This would be one area where they could clearly outperform free-beer software! But I don't think such demand is very high, except in certain niche industries (defense, transportation, etc. although I thin

  • This would totally kill the software industry (Score:3, Insightful)

    by wayne606 ( 211893 ) on Monday June 28, 2004 @07:12PM (#9555815)
    Ever check how much doctors pay for malpractice insurance? It's in the 6 digits for some specialties. Just think what would happen when small software companies start getting sued because of bugs in their code that lead to others making expensive mistakes. Lots of companies would be driven out of business and the only ones that would be left standing would be the ones with the deepest pockets, i.e. Microsoft. Then they would say "we are paying out all these huge damage awards, so we have to raise the base price on windows to $1000 / copy".

    Maybe that's a bit extreme. Seriously, software is way more complex than a car. Who among you would bet your entire net worth that you haven't shipped code with potentially serious bugs in it? There are always bugs.

    Maybe a mandatory "your money back if you aren't satisfied" law would fly. But 99% of the people who take advantage of that offer are going to keep a backup copy of the software, "just in case" ...

    This idea could never get past the unanimous opposition of every company in the software industry. Just live with it - software has bugs. If you don't like it switch to another package or just go back to pencil and paper.
    • Maybe that's a bit extreme. Seriously, software is way more complex than a car. Who among you would bet your entire net worth that you haven't shipped code with potentially serious bugs in it? There are always bugs.

      I only have a little experience with the design of cars, I can't accurately judge your claim of complexity. But remember that cars are only about 40 years older than computers but are a far more understood beast than software. Automotive and mechanical engineers know where to expect things to b

  • Oil change (Score:5, Insightful)

    by jptechnical ( 644454 ) on Monday June 28, 2004 @07:23PM (#9555901) Homepage

    You don't expect a car dealership to be liable if your engine siezes because you never changed the oil.

    The patches and exploits are handled as they arise and if you keep up with the maintenance than you wont suffer catastrophic failure.

    Sure this is a bit of a stretch but you have to take some damn responsibility. You can't blame MS for all your woes.

    They make a good product that keeps the majority on the road. Every generation has new features and new flaws. The fact is the flaws are publicized and you have an opportunity to patch them.

    The time and money spent is part of the upkeep. It is like oil in an engine... if you never maintain it it will fail. It will leave you stranded and up a creek with a very expensive repair.

    However, when maintained you get acceptable operation.

    Quit your mindless bitching! Blame the Virus Writers for writing the viruses. Patch your system be it MS, *nix or whatever. Take some damn responsibility and stop blaming everyone else.

  • djb's take on EULAs (Score:3, Insightful)

    by _iris ( 92554 ) on Monday June 28, 2004 @07:37PM (#9556000) Homepage
    DJB seems to favor the consumer [cr.yp.to] in the EULA debate.
  • If this were the case, you could sue $developer for $foss_project.

    • If this were the case, you could sue $developer for $foss_project.

      Why is this so misunderstood? Why is legal "analysis" like the preceding accepted as unquestioned fact?

      Here's the thing. Well, here are the things--there are two of them.

      1. $developer can be sued for $foss_project today. You can be sued for eating a ham sandwich. You can be sued for putting a detailed account of felonies [sixdemonbag.org] on your webpage. The only way to be lawsuit-proof is to die, and even then, your estate can be sued.

        So this entire

  • Try it! (Score:4, Interesting)

    by bluGill ( 862 ) on Monday June 28, 2004 @08:15PM (#9556272)

    At least in the US anyone can sue anyone for anything. Winning however is difficult. Still, if you think you have a case call a lawyer and present it. If you really do have one, lawyers are good at filling in the details. Details like perhaps lemons laws are not the right path in your state where some other law is better.

    Warning: not anyone can win a lawsuit. And you can be counter sued. Still slashdot is not the place to ask, most of us (such as me) are not lawyers, so we aren't aware of everything.

    Even if EULAs are valid (which as others have noted is not tested), nearly all states will not allow you to sign away some rights. Might help you in itself. (if nothing else why test the EULA if the clause they are using isn't valid in your state)

    There is one more downside: you have to deal with lawyers. No matter how evil you call Microsoft, lawyers are worse! Only sue if it is really worth it.

  • FTC Heard Arguments on This (Score:5, Insightful)

    by lkaos ( 187507 ) <anthony@NOspaM.codemonkey.ws> on Monday June 28, 2004 @08:25PM (#9556348) Homepage Journal
    http://www.ftc.gov/bcp/workshops/warranty/

    97 comments were filed publicly. Everyone from RMS [ftc.gov] to IEEE [ftc.gov] to, well, me [ftc.gov].

    Basically, software warranties would make Free Software illegal. The model wouldn't work if we were held to quality expectations. Read the comments to educate yourself.
  • Ford, Chevy, and all other car manufactures get held liable if they make a defective product, why not Microsoft?
    Most likely because when Microsoft makes a defective product people don't die.
  • There are two ways to look at this, and trust me, they're being looked at.

    What this is all about is whether Microsoft is really costing people money or not. Why would Microsoft cost you money? Because you *had* to install or use their often defective products. Because you had no choice. So, two ways to look at it.

    1) You have no choice. Linux simply doesn't do what Windows can. I don't agree with this but then this is what the parent is suggesting. Is the open source community letting us down? Besi
  • Some developers use license agreements which specifically state that the software *is* guaranteed to perform a particular function to a certain standard.

    Have any of those developers been sued for bugs or defects?

    Or is it the case that those developers do genuinely work to produce quality software while, as one might assume, the ones who disclaim all warranties are the ones who produce faulty products?
  • Let's write to Congress and suggest a law covering necessary commercial software--that is:
    • Software that costs, say, $40.00 or more to license,
    • does NOT fall under a free/open compliant license, making it possible for the user to audit the code WITHOUT paying additional fees for access to a human-readable, non-shrouded copy of the code,
    • and which is required for the performance of personal or business goals.

    It would NOT cover software selling for less than $40.00, and would NOT cover strictly frivolous and

  • Consumer products vs. software (Score:3, Informative)

    by Fnkmaster ( 89084 ) on Monday June 28, 2004 @10:41PM (#9557122)
    Unlike many who spout off on this topic on Slashdot, I am actually qualified to address this issue, having worked for quite a few years in the software industry, and now running a small consumer products development and marketing company. Most software, both enterprise software and consumer desktop apps, run in incredibly complex environments on lots of different hardware configurations, with different OS versions, different patches, different versions of apps and libraries on which they are dependent, and so on. Very few pieces of software are truly monolithic, and almost none always run on a guaranteed, controlled hardware platform with no variations. Perhaps this is why game shops love developing for console platforms - you don't have to deal with the massive return rates, huge QA costs, and consumer bitching no matter how hard you try to make your awesome 3D game run on everybody's PC decently, and to look really great on some people's PCs.


    When you are developing a consumer product, whether electronic or not, there are usually a very limited number of modes of interaction between the user and the device, and generally a very well-defined, firmly specified set of data it operates on. Testing and making sure it works properly is relatively easy - you don't worry about whether somebody has a Voodoo 8 Extreme graphics card or Kingston 1-bit-weird RAM or the strange USB dongle that overrides the standard Windows drivers with their own DRM-enabled gunk. Product lifecycles are much longer, it may take anywhere from 8 to 36 months to get a product to market depending on its nature, and it is expected to have a shelf life of several years to earn back all the R&D costs and make a profit.


    Anyway, if my device that plugs into a wall socket and has an on/off switch blows up and burns somebody's house down, it's pretty clear who's at fault - either the people that designed it, or the people that manufactured/assembled it. If my software fails, there's often no way to say whose "fault" it really is - was it the hardware assembler? The video card manufacturer with their flawed drivers? The OS developer with their crappy architecture? The spyware bundler that stuck destabilizing software on the system? Or the application developer who wrote an app that worked fine on all the systems they did QA on, but mysteriously failed in some unanticipated configuration?


    Even ignoring these problems, we still have the issue of short product lifecycles, lots of feature-based competition, version warfare, and so on. They all occur in most product businesses, but at nowhere near the rate and intensity as in the software industry. And when it comes down to it, the people who buy software for personal use and often for businesses too, consistently prove they value ooh-ahh features and version numbers at least as much as, if not more than stability and security.


    Ironically, this lemon law stuff usually comes from frustrated software developers, not consumers. The developers hate the fact that their companies' marketing or sales people force them to release products too early, in unfinished or untested forms and then they get blamed for the fallout. Usually this is the result of poor project management and the inability to accurately assess tradeoffs between featurization, release schedules, and financing prior to setting out on the project and prior to beginning development. Know what you're building before you build it, or make sure you have lots of time and money.

  • I'm sure CmdrTaco wouldn't like being liable for revenue lost due to a critical failure of his GPL's Slash code.

    And I'm sure that Apache developers would think twice about contributing anything.
  • There are many alternatives out there, it's just that people son't seem to have the imagination (or the information) to consider them.

    For example there are: Linux, FreeBSD, NetBSD, OpenBSD, Solaris, AIX, HP/UX and Apple OS/X on the desktop and server. Yes some are more suited to being one or the other, but they all work. Depending on who you get them from and under which terms you get varying degrees of support.

    There are probably others too, but those are the ones I can think of off the top of my head befor

    • Well, no-one comes to your home, twists your arm and frog-marches you down to the store to buy a copy of Windows, no.

      However, if the alternative OSs don't have the software or hardware support you need, you're stuck. The last time I tried to switch from Windows to Linux, everything was fine except that gnomemeeting was flat out refusing to connect to a remote netmeeting session, and my HP Deskjet 720c printer which produced a perfect test page was rendering garbage with OpenOffice. I spent more than enough

  • If Users Can Sue MS, They Can Sue You, Too (Score:4, Insightful)

    by reallocate ( 142797 ) on Tuesday June 29, 2004 @09:22AM (#9559243)
    Open source advocates need to think long and hard before lobbying for legislative action aimed at Microsoft. The mandate of a lemon law is unlikely to be constrained to only Microsoft.

    Any legislation mandating performance and security standards for software, or allowing its users to bring suit against the people that developed and distribute it, will likely be aimed at open source, as well as other non-MS commercial products. (If not intially, certainly rather soon. A lemon law targetting only MS is no more likely than a lemon law targetting only General Motors.)

    Bottom line, then: If users can sue Microsoft, they can sue open source developers, too.
  • There is a huge difference between virus/exploits and bugs and the lemon law. The Lemon Law applies to defects in the design and manufacture of a product, not necessarily to outside attack. A virus/exploit is comparable to someone breaking into your car. There is no way you can ever sue under Lemon Law because some robber found an exploit in your window that allows it to be broken by rocks and discarded toilets.

  • It's UCITA (Score:4, Interesting)

    by PsiPsiStar ( 95676 ) on Tuesday June 29, 2004 @09:45AM (#9559434)
    The Uniform Computer Information Transactions Act is what gave force to shrinkwrap disclaimers of product liability. Under UCITA, a customer can't sue for damages exceeding the price of the product. If a person disagrees with the liscense, they are supposed to ask for a refund, which must be given under the law. (I tried this, and neither the store nor Macromedia would honor this. The 'cannot be used for commercial purposes' restriction on my educational-discount copy of flash, which wasn't made known until I tried to install the product, rendered the program absolutely useless to me. It was like having a bike and, after buying it, being told the company would prosecute me if I tried to ride it.)

    Virginia was the first state to pass UCITA. Probably no small coincidence that AOL is headquartered there.
  • The main problem is not so much the cars are broken.

    At any point of time almost all cars on the road have problems, usually the problems aren't fatal/critical.

    And often the reason why the cars on the road have problems is not mainly because of the car maker but because of the car owner/operator.

    Then there are the people who go around vandalizing cars.
  • Remember you arent actually purchasing anything when you license software, its just a "right to use". ( and you have the option to stop using and give up those rights.. )

    I would imagine that the way the laws are written today, you have to actually own something to have it considered for the "lemon laws"..

    You also sign away much of the responsibility that the software maker has when you agree to 'use', which may negate any option anyway..

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