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Washington Supreme Court Upholds Shrinkwrap Licensing
rudedog writes: "According to this Seattle Times article, the Washington Supreme Court has upheld a shrinkwrap license limiting recovery of damages due to buggy software. Apparently, the software manufacturer agreed that there was a bug that cost the plaintiff $1.95 million, but asked the court to dismiss the claim based on the license agreement [which disclaimed all liability]. Kinda answers the old open source FUD question 'who you gonna sue if something goes wrong?'. According to the WA courts, nobody." The opinion is available here, and a dissenting opinion by two of the judges is also available.
They state that a shrink wrap license shouldn't alter a previously existing contract. In other words, the contractor's original contract with the software maker shouldn't be abridged by the shrinkwrap license.
This is really a bad win for the software industry.
Welcome to /. Please check all hats, coats and senses of humour at the front desk.
Indeed.
I get the impression from reading the brief that the only reason they upgraded the software was that it no longer worked under their *new* operating system. Somewhere later it mentions Timberline's version for windows.
I supported a product recently that had software for DOS, Win16 and 32 (damn things usually didn't work under NT at all). The newer versions of the software actually broke some things and did not contain features that the older software did. Of course the older software did not run under Win32. So these unfortunate consumers upgrade for whatever reason and get screwered in the process.
The result is that a lot of people still had Dos boxen laying about just for this one product. In my experience with this I tell people, if what you're using now works fine then there's no reason to upgrade. Period.
I also feel somewhat sorry for them that they learned the hard way they have to read what they sign (click). I also have had to tell people many times that I could not help them because by agreeing to our license they let our software go in and change some things on their system that our company did not want us persuing over the phone with the customer(Windows Registry). We'll fax you instructions, but if you hose it up worse, well, have fun.
As another poster pointed out there was no mention of any contact with support personell. I have people call up asking if they should press the [next] button. At least they aren't blindly trusting something that they don't have an intimate knowledge of. If this was such a unique bug, and they had called support (or faxed, whatever) chances are good they would have been able to at least provide an explanation of what was going on, perhaps even a workaround?
Anyway, I think this construction company was on shaky ground for a lawsuit any way you look at it. To purchase a piece of software that important and not have a custom contract for it, or to not simply revert to Dos so they could use the old software until they *could* get a contract for the new software to their satisfaction, was a pretty bad move. Better luck next time.
The plaintiff only lost consequential damages. The $1.95E06 was the difference between their bid calculated after 19 show-stopper crashes and what it should have been.. (And come on, after 19 crashes, wouldn't *you* check the result?)
Limitations of consequential damages are routine: FedEx will give you your $15 back if they lose your letter, but they won't compensate you for the contract you lost because of non-delivery.
is software a good
Depends. If it's open source, it's a good, and if it's Microsoft or AOL, it's a bad.
No, in fact the trend appears to be the opposite. UCITA pretty much enshrines shrink-wrap licenses as solid law.
...phil
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
They *are* getting it, exactly the way they want it. Remember, they don't care about us consumers - they only have to satisfy us enough to pry the money out of our pocket, so they can keep their shareholders happy. That means the software has to be just good enough, and no more.
...phil
...phil
"For a list of the ways which technology has failed to improve our quality of life, press 3."
Actually, I have to disappoint you here. I may have a problem with the balsa child seat, because of the inherent consumer sovereignty problem - the parents buy it but it's the baby who dies if it's hosed. A baby shouldn't be punished for its parents idiocy. The soup, OTOH, is fine with me. Read the ingredients - if botulin's listed, that's a no-no. If the press does its job, they'll never sell a can of the stuff and the whole thing will be a total loss in business terms.
Laws against that sort of thing were made in a time of widespread illiteracy and scientific ignorance, and information sharing was virtually nonexistent. Those conditions no longer hold. Nearly everyone today has access to unlimited information and the capacity to interpret it.
Yes, absolutely! GPL or multi-million-dollar proprietary patentware, doesn't matter. I don't believe in product liability. If you want a warranty, buy one. Consider it insurance. If someone wants to offer you a warranty, that's fine, but nobody should have to. There's no hypocrisy involved here. I agree with the court's decision.
That said, I think the decision is great for Free Software. We don't offer a warranty, neither do the big guys. If you're not going to get a warranty, you might as well go with something that's used by the guy who wrote it and costs nothing. It's one less thing for PHBs to like about non-Free software (as the poster mentions, the "whom do we sue?" attitude).
In fact, I hope we see more like this. I don't want any proprietary vendor held to answer for its products, nor do I want any term of any license, proprietary or otherwise, declared invalid. Go UCITA! Let the big software houses fuck themselves up the ass. Carry it to the logical conclusion - lay bare the true motives of the megacorporations by letting them do business as they like. Once everyone realizes that they won't stand by their products and don't give a shit about their customers, it'll be that much easier to justify the decision to abandon proprietary software. Force people to read and follow their licenses instead of letting them hide behind the shield of the law.
In an environment where the license is written in stone and backed up with the force of law without appeal or mercy, a software package's terms of use become very important criteria indeed. So much the better for those who distribute their software under more agreeable terms.
But never forget that we do have the rights to life, liberty, and the pursuit of bug-free software!
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pb Reply or e-mail; don't vaguely moderate.
pb Reply or e-mail; don't vaguely moderate.
From the copy of Microsoft Visual J++ 6.0 Professional Edition that I won today in a raffle:
"You must accept the
enclosed License Agree-
ment before you can use
this product. If you do not
accept the terms of the
License Agreement, you
should promptly return
the product for a refund."
Of course, it also says on it:
MONEY-BACK
Microsoft
30-DAY
GUARANTEE
...and it has no information on how to return it.
Well, since I don't use Windows, I'll try to find a way to return it within 30 days, and maybe get some cash.
But could someone explain to me how I can agree to something without ever seeing it, and later when it breaks get told "It's your fault, by opening the package, you waived all your rights..."?
Ah well. I don't think the GPL has adopted *that* clause yet, so I'll continue on my merry way...
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pb Reply or e-mail; don't vaguely moderate.
pb Reply or e-mail; don't vaguely moderate.
And there's the review process known as the Free Press that spreads far and wide when a piece of software is a stinking disaster (i.e. the hue and cry over AOL 5.0).
True for now, but some EULAs specifically disallow review without consent.
Personally, I usually just lurk. I only post a comment when I have something important to say.
****Gfx Scrollbar Special case hit!!*****
Most of the industrialized nations of the world have had service-driven economies for the past 50 years. The U.S. is special because it has succeeded in exporting more services more than any other country. Canada, for instance, is comparable to the U.S. in that over 70% of its GDP is in services, yet over 50% of Canadian exports are manufactured goods (especially cars). Other countries have a long way to go to compete with U.S. service exports.
My point is that services are driving the economy, and economic growth is providing lots of the good things currently happening throughout the industrialized world.
What I find ironic, however, is how the concept of how "goods become services". Hasn't it been a mantra of the OSS community to promote software as a "service" and "not a good", such that it eliminates property rights. Be careful what you wish for...
Services are effectively a knowledge-based industry: from the hairdresser to the corporate consultant. Services are *not*, in my opinion, a game that will be dominated by large faceless corporations, they will be dominated by individuals with specialized knowledge, who often just happen to work for large organizations for logistical and strategic reasons. (See www.cluetrain.org).
NDAs are not a licence on knowledge. They are a licence on intellectual property. There *is* a difference. One can write a software framework at one employer, and then re-write it a similar one at another employer, and *nothing illegal* has taken place so long as the source code and original design documents have not been copied. Knowledge is what is in-between your ears, and an employer cannot prevent you from using ideas.
-Stu
The implicit "right" to warranty isn't out of nowhere; it's part of the default-contract provisions of the Uniform Commercial Code (UCC) -- you know, that thing that's getting modified as states adopt UCITA. These provisions apply to commercial transactions unless they are overridden by other terms agreed upon by the parties to the transaction. Every commercial transaction, after all, is a contract.
Now, I don't know about you -- maybe you buy packaged distributions -- but I don't engage in commercial transactions in order to get my hands on GPLed software; I download it from Debian. Therefore, there is no commercial transaction going on; hence UCC does not apply; hence there is no implied warranty. The GPL no-warranty language is largely for show or for clarification, like a lot of the language in EULAs.
Even if you do get your GPLed software in a commercially-packaged GNU/Linux distribution, you are not entering contract with the individual authors of the software, but with the distributor. (You aren't buying Apache from the Apache Software Foundation; you're buying it from Red Hat.) Hence, if there is any implied warranty under UCC, it is between you and the distributor. And the distributor can disclaim that warranty by specifying other terms to the contract -- which the Washington case under discussion holds that it can do via a shrink-wrap agreement.
So, in other words, if Apache explodes, you may be able to claim warranty from Red Hat (if you bought it from them), but you can't claim warranty from Apache. Further, you can't even claim warranty from Red Hat in the state of Washington if they have a warranty-disclaiming EULA-style "agreement".
Microsoft's "End User License Agreement" assumes that before you agree to it, you have no right to use the software. The EULA, therefore, is phrased as a "license" to use the software. GPL, on the other hand, assumes that you already do have the right to use the software; what you lack, due to copyright law, is the right to redistribute it. The GPL, therefore, is phrased as a license to distribute the software, under certain conditions.
You'll note that you don't have to click on the GPL in order to be bound by its terms when you redistribute GPLed software. Why? Because the GPL is not a contract. The GPL is solely a license. In fact, the GPL clearly states that you do not have to "agree to" it; if you don't want to obey its terms, that's fine -- but if you do disobey its terms when distributing GPLed software, that distribution is a violation of copyright. You may obey the GPL's provisions when redistributing GPLed software, in which case you are within your rights, or you may violate its provisions when distributing GPLed software, in which case you are breaking the law.
(Note, if you will, the difference between agreeing to something and agreeing with something. The latter is an expression of opinion; the former is a declaration that one consents to be bound by a set of terms. Note also the difference between agreeing to something and obeying it. You don't need to agree to the laws against copyright violation in order to be penalized for not obeying them.)
In contrast with GPL and related licensens, proprietary EULAs aren't licenses at all; they're waivers masquerading as contracts. In exchange for the dubious "right to use" the software, they state that you must agree to waive certain rights you would otherwise have. By clicking on the little "I Agree" button, you thereby (supposedly) waive those rights in exchange for the "right to use".
But there is no "right to use" -- or rather, the right to use is inherent in legitimately-granted access to the software.
Consider: If I operate a college computer lab, I grant access to the computers in that lab to any number of students who have not clicked on any "license agreement". What grants these students the "right to use" any proprietary software that may have been (legitimately) installed on that computer? If one has to agree to an EULA to have that right, then those students, not bound by any EULA, are just as illicit as any warez d00d.
My interpretation is that what grants the students the right to use the software is the fact that they came by it legitimately -- that the software was legally installed on the computers (i.e. it was not "pirated") and that they had the right to use those computers.
Similarly, if you legitimately come by a piece of proprietary software -- say, by purchasing a CD containing it in a store, or downloading it from the manufacturer's Web site -- then you already do have the right to use it. You don't have to agree to anything. Go ahead and unzip Microsoft's Kerberos documentation with WinZip, Stuffit Expander, or unzip(1), instead of running the self-extracting archive and seeing the bogus "trade secret" EULA. You already have the right to use it within if you downloaded it legally. (You don't, however, have the right to redistribute it without a license to do so. That's copyright law.)
===
A Parable on Licensing:
Imagine, if you will, that I own a bagel shop and you purchase from me one bagel. You leave my shop; I follow you to the park, where you plan to eat the bagel. Before you take a bite, however, I exclaim: "By biting into that bagel, thus making use of the intellectual property of its recipe, you agree to waive your right to sue me if it contains radioactive waste, cyanide, or dead roaches! I do not grant you permission to eat that bagel unless you agree to these terms!"
Assuming that you do not immediately become disgusted and toss the bagel in my face or the trash can, does your biting into the bagel create an agreement between you and me? Of course not. Did you need my permission to eat the bagel? Of course not. You already had the right to eat the bagel, as you came by the bagel legitimately -- by buying it from me, its creator.
(Little hint, though: You shouldn't buy bagels made by people who want you to waive your right to sue if they contain radioactive waste.)
If a company does not adhere to acceptable standards in product design, testing and construction methods, you open yourselves to lawsuit liability. Being held accountable to process. There are flaws in every complex product you buy, many times you don't notice as it isn't critical or involves using some feature that you ignore or won't show up unless disaster strikes (not nearly enough nails to hold the roof down? It's happened)
So if your design of "enterprise" level software was done by the Beverly Hillbillies and your testing department looks like could have been replaced with devolved apes with no noticible difference, and built using tools and equipment known to be improper for their use, you are totally hosed.
Your first point #3 is completely right. I know a small ISV who wrote a terminal emulator package for use as an add-on to a banking software package. The end user banks were/are unaware that the terminal emulator is a third party add-on.
As Y2K came around, he was asked to provide a letter of warranty for the supplier of the banking software saying that there were no Y2K bugs in the terminal emulator.
Even though he had tested the emulator and believed that there were no bugs, he had to lose the continued sales because the risk of being brought into a lawsuit by being associated with the main software (which he knows contains bugs) far outweighed any profits he might make.
As a result, the banking software developer had to throw away a terminal emulator that had three years of field testing (i.e., everyone knew it worked) and start from scratch writing a new package (complete with new bugs).
-- OpenSourcerers
Insurance is a good idea, and despite the GPL's disclaimer of responsibilty, the fact source is available should be a factor in deciding what software to aquire. There are also a couple of projects to audit the kernel and major applications for security.
Business idea: package a free OS with business insurence, possibly with a utility to verify the integrity of the various package. Security patches would of course be avilable to the Linux/FreeBSD community-- but if a customer uses a unaudited package, he loses insurance benefits for that particular package.
It would be analogous to fire insurance companies approving an alarm/sprinkler installation.
I think this could be good because free software authors need to be protected from any liability. On the other hand, It would may also reinforce the "no reverse engineering" clauses that are included with so many shrink wrap licenses. I certianly hope that these clauses are found to be unenforcable because that would prevent others from writing products that interoperate, and reduce competition.
-- Knowledge shared is power lost. -- Aleister Crowley
Yeah, the free software author might be forced to give a full refund. How disasterous!
-- Knowledge shared is power lost. -- Aleister Crowley
Better yet, write up a GCL, take a sheet of those colored dot labels and print GCL on each one.
Then when you go shopping, if you think something is going to have a license you don't like, stick a GCL sticker on it before you get to the register.
Now you've modified the license agreement, sticking your proposed changes (by reference) on the box, where they are even easier to see than the leftlet inside or the software click-through license
You take it to the register and offer to buy it with the modified terms, which you fail to mention to the check-out drone, in the same way that the check-out drone fails to mention the original license agreement to you.
They sell you the product, you've got the product with the modified license.
Oh please. Sen. Gorton is pretty well known as the Senator from Microsoft with _everyone_ I know that pays attention to politics in WA. Not that he's the only one. Remember Sen. Jackson? He was from Boeing.
While I don't think that MS buys off every judge in the state, they have an exceptional amount of influence in King County and WA in general. As for love, people love MS only because 1) they own stock 2) they work there. Can't say I can think of a whole lot of people who like 'em because of their 'quality' products, 'ethical' business practices or 'humble' attitudes.
I will grant you though that WA politics stink. I'd love nothing more than to run them all out of office at city, county and state levels and get some people in there who view themselves as civil _servants_. It would be a refreshing change.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I don't know, but if you have to pay for a piece of software, I think the company should be held liable. After all, you are PAYING for it.
-riko
I honestly think the safest policy for GPLware would be to ship it as source code only, saying "Here's some code you might be able to make an application out of."
You (I'm using the theoretical, general sense of the word) can bootstrap-install any of the Linux distributions from source tarballs, source RPMs, etc with nothing but a C compiler capable of compiling gcc... but I wouldn't want to.
And I don't see the point. The current statement of most software vendors, "Here's some binary code you might be able to run," seems almost equivalent.
Surely nobody here thinks that a company should be able to sue Linus if their server dies with a kernel panic; the GPL disclaims all warranty, liability, etc. for free software placed under that license, just like the Microsoft EULA.
So how much does a software owner have to charge for a license before they have to be liable for any and all damages caused by someone using it?
Even software makers who are willing to put their money where their mouth is usually give a list of medical, nuclear, etc. applications where that liability doesn't apply. If some idiot tries to put embedded NT into a life support system, should Microsoft be liable when it bluescreens?
---
Sometimes I'm surprised that we haven't been accused of having a role in the 1980 eruption of Mt. St. Helens!
---
Don't you dare try to deny it, either.
(I live down-wind from St. Helens)
:>
- Jeff A. Campbell
- VelociNews (http://www.velocinews.com)
- Jeff
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According to all the case law out there dealing with shrinkwraps, Sears could get away with this, and would have the right to sue you if you misused "their" hammer.
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Right. At which point, you walk out the door and buy a hammer elsewhere.
As consumers we vote with our pocketbooks. If an item - even software - doesn't have the license you want, don't buy it. It's 100% the consumer's fault if they purchase something with full knowledge of its license terms and decide that they didn't care for the terms they agreed to. It's not Company XYZ's fault if I'm too stupid to complain and demand something better.
- Jeff A. Campbell
- VelociNews (http://www.velocinews.com)
- Jeff
Because you "agreed" to a "contract" absolving the vendor of all liability.
Oh, and you don't own your software, either. You gave title back to the vendor when you "agreed" to the "license."
Schwab
Editor, A1-AAA AmeriCaptions
Shrinkwraps constrain use; the GPL constrains redistribution. An analogy:
GPL: "As lawful posessor of this software, you're free to do anything you want with it. Because it's copyrighted, you can't make/distribute copies. However, if you agree to these terms, we'll implicitly grant you a license to make and distribute copies."
Typical shrinkwrap: "You must agree to give up ownership of this software, to not sue us, to not reverse-engineer the software, and anything else we can think of, or you can't use this software at all."
Which contract is the product of the more mature mind is left as an exercise for the reader.
Schwab
Editor, A1-AAA AmeriCaptions
That's a bit different from the scenario I described. In your scenario, you're free to use the UL-tested outlet in a hospital, and no one will try and sue you for breach of "contract."
Schwab
Editor, A1-AAA AmeriCaptions
Yes, it's closer, but that contract is negotiated and signed before you cut the check and get your hands on the laser system. The same is not true for software purchases.
I don't object to licenses per se. What I'm objecting to is the attempt to apply them in the context of a retail purchase of goods, a situation where consumers don't expect "weird things" to happen.
Schwab
Editor, A1-AAA AmeriCaptions
Again, I challenge you to find a piece of commercial closed-source software, for sale over-the-counter, that does not come with a "license" attached.
You're arguing that the consumer can vote by spending their dollars elsewhere. I contend that this scam is so widespread that, for all practical purposes, there is no "elsewhere;" no meaningful choice exists for the consumer.
Schwab
Editor, A1-AAA AmeriCaptions
Once again, allow me to shamelessly plug my editorial putting the case against shrinkwrap "licenses".
There is, sadly, a ton of case law supporting this garbage. This despite the fact that the crushing majority of people in the US alone have no idea what a shrinkwrap "license" is, let alone the specious legal reasoning on which they stand. Thus, while the law may be on their side, I believe public opinion can be marshalled to our side fairly easily, since the ethical issues and "common sense" are fairly clear here.
Start telling your friends and neighbors about this stuff, especially if they are not computer-savvy. It's the newcomers to the digital realm who stand to be screwed the most by this.
BTW, striking down shrinkwraps as unenforceable would not affect Open Source licenses (GPL, BSD, etc.). Shrinkwraps operate off an entirely different principle.
Schwab
Editor, A1-AAA AmeriCaptions
Interested observers should check out Cem Kamer's Bad Software Web site. In particular, you'll want to read up on the court cases testing the provisions of shrinkwrap licenses and other contracts of adhesion. It's pretty depressing.
Schwab
Editor, A1-AAA AmeriCaptions
Underwhelm discusses the very issues I've been beating on for the last ten years: Shrinkwraps are a harbinger of much more evil practices yet to come. One hypothetical situation in my parade of horribles (hi, Andrew!) is the following:
One day, you walk into Sears, and find all the hammers are gone, having been replaced with two hammers: the Craftsman(R) Personal Hammer, and the Craftsman(R) Enterprise Edition Hammer.
Both hammers come in a box with a "license" printed on it. On the Personal Hammer, the license says that you can only use the hammer for personal projects, home repairs on your own home only, etc. In particular, the license forbids you from selling/profiting from anything you use the hammer to build. On the Enterprise Edition Hammer, you are allowed to use it to build stuff for sale, provided you give to Sears 1% of the gross sale price of objects the hammer was used to build.
The Personal Hammer is $35.00; the Enterprise Edition Hammer is $550.00. In all other respects, the hammers are absolutely identical .
According to all the case law out there dealing with shrinkwraps, Sears could get away with this, and would have the right to sue you if you misused "their" hammer.
Some would argue that Sears should be able to get away with it; they should be free to offer their products under any terms they choose, and if you don't like them, you can shop somewhere else. If this argument has merit, then it should be possible to purchase software under different terms.
I challenge anyone here to produce a shrinkwrapped box of closed-source software (a Linux/BSD distro doesn't count) that doesn't come with a "license." Games used to be free of such instruments; sadly, this is rapidly vanishing. Thus, the choice of alternate terms for commercial software, in practical terms, does not exist.
I believe this is an extremely bad state of affairs, and must be corrected.
Schwab
Editor, A1-AAA AmeriCaptions
Well, the dissenting judges said that the reason the software company SHOULD be liable is that the contract was amended unilaterally, after the sale. i.e., the original contract was "Send us the money, we'll ship you the program" - but when it arrived, *poof* here's this new license on the box, or worse, IN the box.
:)
With GPL'd software, at least what you get off the web, you haven't entered any ambiguous contract up front - the smart web pages say, right there on the download page, "NO GUARANTEES" so I don't think there's any real grounds for a suit.
At least that's how I read it. Or I could be completely wrong.
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You can be reasonably sure on building a designing well built software, as much as you can be making cars.
Obviously, even automakers will make really bad mistakes as softwaremakers, but at least they are liable, and will fix it. An example is the 1996 Plymoth Minivans, radically redesigned, but had a bug that cause the fuel pump to leak gasoline on some models (right next the firewall, near the engine). Yes, it cost them alot to fix it, but they did. And I assume they took all possible procations before selling this car, they just couldn't predict this future flaw.
Dozens of products have life threating flaws, but at least non-software venders are usually forced to fix them.
The fact is, nobody can claim software is bug free OR that other products are bug free.
That being said - shame on software manufacturers. I wish somebody could sue for advertising the use of that software in "mission critical" environments (or any other buzzword of your choice) if they had such a disclaimer. Where is Ralph Nader when you need him?
Also, Rob.. where's my quickies?
Here comes some ongoing ideas for software law reform:
a) All software sold for profit must include a listing of any and all features implemented in the software.
b) If the software is found to not live up to this listing (i.e. CoolAPI#42 compliant) upgrades that forfill this claim must be delivered for free and in a timely manner.
c) A full refund of the software price must be given if damages are proven to occur due to incomplete implementation of features outlined in aforementioned listing.
This would help go a long way to better documentation, no more gouging for bug fixes, a decrease in vaporware, and make my cat not stink and my breath minty fresh.
USA-Democracy is 270 million YESes and NOes a day, not one every four years.
I always thought that shrink-wrap licenses are a joke, designed to scare away uneducated customers from enforcing their consumer rights. That's how it works in Europe (even though the licenses are very common here as well - SuSE Linux 6.4 has a seal on the CD case that says "by breaking this seal you accept the non-liability statement printed on the cover").
It seems that there is plenty of room for a new software industry that produces reliable code and has the guts to say so. Would you buy a car that says in the manual "the manufacturer doesn't guarantee the suitability for driving"?
"I love my job, but I hate talking to people like you" (Freddie Mercury)
Well, let someone who has no interest in using the software do it. They will waive their rights, you will use the software and keep the rights. Perhaps you can get your trained cat to press the mouse button or the Enter key.
"I love my job, but I hate talking to people like you" (Freddie Mercury)
If you stick with this as an analogy, there are no hammers available on different terms. You'll have to build your own. Or, you'll have to wait for a bold hammer manufacturer to step forward and just sell a "hammer" for a reasonable price and without a license, and then hope that he'll survive the first round of lawsuits from people who smashed their fingernails...
"I love my job, but I hate talking to people like you" (Freddie Mercury)
I thought I'd take a moment to refute a couple of (I think) fallacious arguments that I see a lot of people making, namely: "We have to allow software to disclaim warranties, or it will be swamped by lawsuits," and, "The GPL (along with every other free software license) disclaims warranty, so isn't it just as bad?"
The answer to these points is that you should be perfectly allowed to disclaim warranty and make other conditions, but you must do so before the sale, like in any other industry.
Every other industry is required to put prominent "sold as-is, no warranty" signs up in the store for this purpose--why can't software? They would get to disclaim warranty, and consumers would know exactly what they are getting into.
With free software, you can examine the warranty before you buy because you typically download it for no cost. On the other hand, I think that vendors of commercial Linux distributions and so on should be required to disclaim warranty, and in general make the terms of the sale clear, before any money exchanges hands.
Unfortunately, it looks like the courts aren't siding with consumers and common sense on this one. Even the dissenting opinion here accepts that post-sale shrinkwrap licenses in consumer transactions are valid--they only objected because here the buyer pro-actively proposed a "contract" (a purchase order) that was accepted by the vendor.
I am not a lawyer, this is not legal advice, without even the implied warranty of merchantability or fitness for a particular purpose.
(By the way, the other terms of free software licenses, like the GPL's terms for derived works, are different from a warranty disclaimer or a shrinkwrap license. You are free to not accept them, but in that case you go with the default under copyright law: you can't distribute copies or modified versions.)
If a thing is not diminished by being shared, it is not rightly owned if it is only owned & not shared. S. Augustine
End the kharma-whoring system alltogether. There is no reason why every individual post cannot stand or fall on its own.
It's not surprising that you can't see the reasons, since nearly all of your posts don't climb above 1, and thus perhaps 1 in 10 of your posts ever manage to be seen by the majority of readers.
And even those are usually crap like the above.
--
You maybe be thinking of the RISKS Digest which is the same as the newsgroup comp.risks. They have a web archive at http://catless.ncl.ac.uk/Risks
They kind of live for murphy's law.
These kind of devices DO COPY the content of the disks to their DAC memory and/or their MPEG decoding buffers.
Maybe we should file a lawsuit against Sony, Philips, Pioneer et al for DMCA violation in their player devices.
I'm *really* glad that Italian law forbid these kind of stupid things. Things here are far form perfect, for example 10 years ago M$ was able to 'pass' a software protection law that basically was their EULA at that moment. Too bad (for them!) that that law is in contrast with HALF the italian property law, and no one ever attempted to file a lawsuit using it. And just to specify: Italian property law says that if you BUY something, then you can do with it a lot of things.
Ciao, Rob!
AniToolBox! An Open Source animation program!
Software vendors shouldn't be held responsible for their bugs. Why? Because it's pragmatically impossible to create bug-free software when you're dealing with millions of lines of code. Even if it is possible, it is economically infeasible to bring the required level of engineering to every project.
I think this line of reasoning is garbage. To extrapolate, anything complex can contain errors, and that's okay. What about the airplanes everybody flies on? What about the cars everyone drives day in-day out? What about the house you live in?
We've seen what happens if an airplane has a problem - (what if was a software problem?), but every one of them is recalled to be fixed. The same goes for cars. If your house has a leaky roof as soon as you move in (if it's newly built), the contractor had best fix it.
Why should the software industry be any different? Claiming exemption from the same responsibilities that every other industry must follow isn't a given right, it's lazy.
-Jeff
The problem is *how* they limit their liability. In this case, the construction company called the software vendor and ordered the product. The vendor shipped the product without disclaiming liability. The dissenting judge found that *this* was when the contract was made and that if the vendor felt that additional terms were required, they had the opportunity to request them *before* shipping the product.
In this case, the shrink-wrap license appeared *after* the contract was made which substantially alters the contract.
The truly remarkable thing is that the majority even accept that the vendor installed the package and the end-user NEVER EVEN SAW the shrink-wrap license.
But to address your concern: yes, small software vendors *can* disclaim liabilities, but they must do so when the contract is made and not after they ship the product...
-- Don't Tase me, bro!
A new car may have parts that fail during the warranty period. That isn't unusual. However, if the car is in the repair shop more than it is on the road, the dealer and manufacturer have a responsibility to remedy the situation.
There are implied warranties of merchantability and fitness for the intended purpose. Vendors should not be allowed to disclaim these warranties. Any claims made in advertising about features and performance should be legally binding on the vendor. It is disingenuous to disclaim all warranties and simultaneously market the product as a cure for all ills.
I hate the concept of shrink wrap licenses. Unfortunately, there is a precedent in those contracts that are printed on the backs of sports, entertainment and airplane tickets. Those have all been upheld in the courts.
Mea navis aericumbens anguillis abundat
Well, names like MS and Lotus might refuse to disclose source to paying customers, but it used to be possible to get a 'source code license' ... and the source code, of course ... along with commercial Unices and Unix products. You still can get source code licenses for commercial Unices, at least; not sure how many apps will do that, though.
(Not that this changes -current- widespread practice, just saying it isn't entirely universal and could shift if corporations see the value.)
--Parity
--Parity
'Card carrying' member of the EFF.
I think the law is more about what people's general opinions are about what is reasonable...(weighted a bit here and there by money, politics, how many babies died etc.)
And people know how to make reasonably safe child's toys, and hairdryers that don't fry you, but nobody but nobody can reasonably claim their software is 100% bug free. If they did, we'd all laugh.
We don't even know how to objectively count, definitevely, how many bugs something has... so what exactly are you going to legislate?
We don't sue gravity when we fall off our chair. I wish Certainty(TM) software existed... but until one of you clever ducks invent it...
Perhaps there is scope for the Law making assessments about what a reasonably preventable bug is... like Gerry Pournelle of Byte once said, re. a bug in Word, "A WP should never, ever ever crash because of something you typed into it." (he'd just got his file mangled, and tracked the bug to a section of his text).
Likewise, it's reasonable to expect a database to not lose data, or gradually corrupt data such that even back-ups are useless.
Yes, they should have to fix these things.
After laboriously reading through the actual text of both the ruling and the dissenting remarks, I've got a few comments to make.
First, the ruling judge seems to have a few valid points, but he seemed to make them based on some odd correlations with other contracts that just don't apply.
Judge Johnson ruled based on the notion that the initial contract and the shrink-wrapped contract were part of one big contract, rather than the reality of the situation: the shrink wrapped contract would be an addition or alteration on the existing, agreed upon contract.
It seems to me that this is a rather unfortunate ruling. How many of you have had a software vendor install software for you? Have you forced them to stop while you read the shrink-wrapped agreement? If not, you could be subject to much the same issue.
To some extent, software manufacturers need to be held as accountable for their product as a construction worker or car manufacturer would be held for theirs. Someone earlier remarked "would you hold MS responsible for a death if you used WinNT on a heart monitor and it BSODed?". No, but I'd hold the software manufacturer of the software that was written for that purpose. That is the situation that we have here, and the result was not good.
Just my thoughts.-Jer
You are right, to a point. A software manufacturer shouldn't HAVE to be responsible for the products they produce. They simple should have to be upfront about it, and shrink-wrap contracts aren't it; especially when there was another contract prior to the shrink-wrapped one involved. If I, as a consumer, in the initial contract agree not to hold a software vendor responsible for bugs, so be it. If I don't, and it's snuck in in a shrink-wrapped contract, that shouldn't be legal.
-Jer
IMHO, the liability of the software manufacturer should be limited (or be able to be limited) to the purchase price of the software in question. The message here is a simple one: You make crappy software, you make no money. You make good software, you reap the benefits.
That's just insane. Why should the rules so far as liabilty be any different than in any other industry? Admittedly, not all brick-and-morter laws apply to the Internet and the software industry, but in this case, they should. If a contractor builds a building that collapses and, although it kills no one, destroys $1 Million in equipment, they should be liable for it. If a software company makes a product that can't do math, they should be liable for the results of the missed math.
We do need to rethink the laws that we mindlessly apply to industries in which it has no place, but this isn't one of those applications.
-Jer
I think that if someone says, "Buy this, and it can do this" you should be able to sue the person(s)|company that promised.
The problem with the software industry is that it promises but does not deliver. If you say "it will do xxxxxxx" then it should. If you sell me a new car that you say does "xxxxxxx" but does not deliver then I can return the car (In the state of California). If you build a building and it cracks or falls or I can not have people on certain levels, then you are responsible for the building. What people have to realize is that a software product is a REAL product. It is what people run businesses on, like buildings or cars.
Linux O Muerte!
The way I see it, this can be taken two ways:
1) Breach of contract on the part of the seller. The seller states that a product does things A, B, and C. The product does A and C well, but loses a customer big money when they try and the product fails (repeatedly) to do B.... If this were ANY other product, it would constitute false claims about the product and would open the seller/producer to legal consequences.
But NOT in the case of software...
2) Caveat Emptor.
But should this wreak havoc on the shareware industry? I don't think so. The product hasn't caused irrevocable physical harm to anybody. The fault here was not only on the part of the software writer, but on the users of software. If I buy a calculator and it tells me that 5 + 3 = 9, and I use that answer....who's to blame? Sure, the calculator maker provided me with a bad product, but I also used its answer without double-checking my results.
IMHO, the liability of the software manufacturer should be limited (or be able to be limited) to the purchase price of the software in question. The message here is a simple one: You make crappy software, you make no money. You make good software, you reap the benefits.
Scott
I think the important thing to note here is that people are going to have to look at your software subcontracting more closely... there's allways some subcontractors who try to rip you off, duh! that's business...
certainly if you are subcontracting some software development you want it in writing that there will be no bugs, or a specified number and impact of such bugs, and who will take care of those bugs...
as far as more broadbased software (like Linux, Windoze, MS Office) this isn't a bad thing necessarily... otherwise software companies (and the FSF) could get sued into the ground!
Given the large sales of certain products (MS Windows, Office, etc...), I'm sure MS could affford to do some advanced error catching procedures, without losing too much of their net profit.
The issue with linking is not that it's modifying, but that it is is creating a derived work from the library. Or so says Elder God Richard M. Stallman. I have serious doubts.
I can see where static linking makes a derived work out of a main program and a library, because the code in the library gets replicated into the executable image.
However, dynamic linking works completely differently! When a program is dynamically linked to a library, some information is placed in the resulting executable as to what library files need to be accessed. No portion of the library code is placed in the executable image. Why is that creating a derived work from the library?
Finally, what about programs that use dlopen()? The library code isn't even loaded until that segment of the executable code is hit -- how could that be a "derived work"?
If someone can give me a reasonable explanation of this, I'll be happy to accept it.
Glückwünsche, haben Sie Slashdot ermordet, indem Sie zum korporativen Druck beugten und Subskriptionen einlei
By reading this post, you owe me $5. Please pay with PayPal.
Programmer0: "Hey, what should I use for the bug counter, bigint?"
Programmer1: "Nah, nothing will ever have that many bugs; use a short, saves space, you know."
Programmer0: "Yeah, you're right."
> For years, I've been operating under the (apparently false) assumption that these "licenses" were not legally binding.
I think there is a lot of variation in the basic laws from state to state within the USA. IIRC there are even some places where you can explicitly sign something waiving your rights to sue, and then sue anyway, because the state sees it as an inalienable right.
Personally, I think it should be inalienable. Yes, the tort system is frequently abused, but it also serves a purpose. You hear about the high-profile abuses all over the media, but you hardly ever hear about the day-to-day check & balance role it plays.
I think other rights should be inalienable, too. Certain things employers and landlords always want you to sign, you should be able to sign with impunity and then laugh at them when they try to enforce it. Also free speech issues, e.g. if KM did in fact agree not to work or even talk about anything in the IT field, he should have constitutional protection that lets him sign the deal and then tell them to fuck off.
A right that is not inalienable isn't much of a right.
--
Sheesh, evil *and* a jerk. -- Jade
> I can design a bad product, cost the people who use it millions and get away with it? Sweet...
Yep. If you land a $100,000,000 contract to provide a big corporation with all its software needs, you just spend a minute knocking out a "Hello World" program and ship it.
When they complain, you say, "Sure, there are some bugs in it, but a deal is a deal. And I even came in ahead of schedule! Pay up."
--
Sheesh, evil *and* a jerk. -- Jade
> Personally, I don't care for them, but I think companies have the right to include them if they want to.
I'm inclined to agree. However, there should be some ground rules, e.g., you have to be able to see the full text of the license before you buy, the license cannot protect the vendor against malicious acts, the license cannot make you waive certain really basic rights, etc. (OK, maybe there wouldn't be much left after I got through with it, but these are the kinds of thing society needs to be thinking about.)
Good post; nice observations about warranties and stuff. Maybe that's how things will shake out from the free software movement: you want a warranty, you pay, otherwise you download it for free. Might not be such a bad model for the IT economy.
--
Sheesh, evil *and* a jerk. -- Jade
will this help or hurt? seems it could unfortunately strengthen the upholding of UCITA in court. :P
The dissenting opinion is pretty interesting on this point. They said that the contract is formed when the software is offered and payment given. Mention is never made of license agreements at this point. Shrinkwrap agreements would logically be an attempt to force the user to change the contract afterward.
I think something like nice, big, surgeon general warnings should appear on software packages that offer no warranty. That might shame companies into changing their licensing practices, while allowing CheapBytes to continue making a profit.
Oh, and I recently read that GNU code is actually among the least buggy. . .
Let's say we take your advice and limit liability to the price of software. Now let's say I write a cat-scan program that malfunctions and delivers a lethal dose of radiation--but just to 1 in 1000 patients. What do I do?
Obviously, I write it off as a business expense!
This is an extreme case, but my view is that limiting liability limits responsibility.
A lot people have been comparing selling faulty software to someone selling faulty cars or other physical things.
I think that an important distinction needs to be made in how the things are used. The software probably works fine on the machines at the writer's office, and worked well for the trials and beta tests they gave it. This is comparable to an auto being road tested on good-quality highways.
But when people start taking that piece of software and using it on systems with widely varying specs, and expecting it to run along with other software and hardware that the manufacturer didn't or couldn't test; this is similar to someone taking their nice little sedan out into the middle of the woods and expecting it to run fine.
If people expect to be able to hold software companies responsible for the reliable operation of their software, those companies are easily going to be able to place restrictions and expectations on the use of that software. There's no way to win this situation.
First of all Washington has not passed the UCITA as far as I know, so this case really doesn't have that much to do with it.
I followed a link in one of the comments to some statements by RMS:
You see, UCITA says that by default a software developer or distributor is completely liable for flaws in a program; but it also allows a shrink-wrap license to override the default. Sophisticated software companies that make proprietary software will use shrink-wrap licenses to avoid liability entirely. But amateurs, and self-employed contractors who develop software for others, will be often be shafted because they didn't know about this problem. And we free software developers won't have any reliable way to avoid the problem.
Why exactly isn't the GPL a 'shrink-wrap' license? Does anyone know? Is it just the click-through thing? Why can't the GPL disclaim warrantees?
ReadThe ReflectionEngine, a cyberpunk style n
(See subject)
ReadThe ReflectionEngine, a cyberpunk style n
Oops. It would make Washington the third state to pass UCITA. Va. was first, Md. followed like a whipped dog (like they always do when Va. does something stupid. They only show backbone when not following Va's lead with intelligent things)
Jesus was all right but his disciples were thick and ordinary. -John Lennon
Hey, you are preaching to the choir here. I know that software done right the first time is always cheaper and better than software fixed later. However, even software done the right way WILL have defects. Remember that software defects can come from more than just coding errors. Vague documentation, a misunderstood spec, etc. are all defects which can result in catastrophe. Bad docs are something no testing program can detect, and they are subject to the whims of the English language.
A safety design defect free car is far eaiser to make than defect-free software. This is because for a car to be considered free of defects, it only must meet defined safety standards, and pass a certain set of well-defined tests. An entire car consists of a few thousand parts (most of which do not interact with each other), and costs hundreds of millions to design. The properties of those parts are well understood and easily testable.
With a skyscraper, I can run the design of a building through a streightforward analysis program an see if it will meet acceptable margins for safety. Keep in mind that a building is ususally several times as strong as the load it is supposed to carry. After all, you can make a building stronger by adding more steel, brick, concrete, etc. This can cover up design defects that make the builiding less strong than anticipated. (This is the whole reason for the safety margin.) Other than blanketing your program with assert statements and cumbersome exception handling, there is really no way to "add more steel" to a program design.
An everyday moderately complex non-commercial program can run 200,000 lines, and are usually developed for far less money than a car. There is simply no way those 200,000 lines will not have any bugs that will result in failure. The best you can hope for is that when it dies, it will die gracefully.
There are techinques to minimize defects, perhaps whittling them down to one or less defects per 1000 lines of delivered code, but without spending a forturne that number will never be zero without a fortune in testing. This is the simple reality of software development.
SirWired
1) As other posters have pointed out, large, complex, software is almost impossible to write with zero defects. If most production software had to be bug free, there is no way anybody could afford it.
2) Limiting you from recovering consequential damages, etc. is something you see in almost all products for sale. And you almost never get to read the warranty before you buy pretty much everything. Just check the manual with your VCR, refridgerator, lawn mower, etc. They all, without exception, disclaim themselves from liability for incidental and consequential damages. (Except in such states that prohibit said exclusions.) Note that while this does not absolve them from gross negligence or intentional malice, but bugs in software generally would not fall into that category.
3) Put yourself in, say, a software writer's seat. If you are writing shareware with a $5 licensing fee, do you want to make yourself open to $1M+ lawsuits if someone relies on your software to do something important, and it breaks? Hell no!
The way I see it, you have one and only one of three choices:
1) Cheap/free(speech/beer) software.
2) Almost no software. (That is how much software would be written if it all had to be bug free, or else.)
3) Expensive software where you pay for the privledge of suing the pants off of the scmuck who wrote it.
I think, if we don't fix this craziness now, that the license fee will how you buy cars after we master the joys of nanotech.
"Sure it's only made out of $50 worth of sand, but we have a patent on how to do it, so the license fee is $10,000. And don't try one of those home replicator units either, the Feds are watching."
Great comment, overwhelming, even.
--
+&x
caveat emptor!
hehe
Dangerous products are dangerous products, regardless. People should at least have their own source to check. So, now I'm buying a car with the hood welded shut, that has a tendency to explode, and it's my fault if it happens. And it's very expensive. Proprietary software ROCKS!!
--
+&x
After I read the article, I was a little bit pissed off, but then I came back to my mind, My Gosh! I am a programmer, When I am coding thousands to hundreds of thousands of code, it is inevitable that bugs creep in. As a programmer, I definitely will truely wish to squash all those bugs before I ship, what programmer wouldn't? But realistically, such never happens. So we have programs with bugs shipping. That is why programs are shipped with agreements to protect us. But this is unfair to consumers, A lot of programs today are bloated, and with this bloatness comes more bugs, a lot of programmers are careless today, everyone wants to ship on time, not ship quality software.
If a prior to shipment, a program had a bug, and they guys shipping the program knew about this bug, but refused to fix it. I think they should be held liable for some of the damages, but it would be hard to prove such a thing as it can be concealed very easily. I was thinking that at the very least we should refund softwares if the cost of damage it produces is more than it was bought. Thus, if you spend $5k on a software, and the software ends up costing $5k in damages, you should at least get your $5k back. But then again, what if that same software has made you $10 million prior to that damage? What if the bug in the software is not from your own code, but from a library that you licensed?!
This is a very touch subject both as a consumer and as a programmer, I can't even think of a solution that will satisfy both parties, I can only state some of my opinion into the matter.
------ Curiosity killed the cat. {satisfaction brought it back | it didn't die ignorant | lack of it is killing mankind
Yes, absolutely! GPL or multi-million-dollar proprietary patentware, doesn't matter. I don't believe in product liability. If you want a warranty, buy one. Consider it insurance. If someone wants to offer you a warranty, that's fine, but nobody should have to. There's no hypocrisy involved here. I agree with the court's decision.
I'm going to have to disagree with you here - product liability is a very, very good thing when used properly. In this case, M.A Mortensen purchased the program Softworks for Bid Analysis, which was designed to create construction bids. Mortensen submitted a bid generated by this program, which had erroneously quoted a final price $1.95 million lower than it should have. In another case (NCR back in the mid-80s), an inventory management program was sold for $180,000 to a $4 million-a-year company, with some known severe bugs (e.g., if two users tried to access the database at once the program would crash and corrupt data, items out of stock would be listed as in stock, items in stock would be listed as out of stock, etc.), and because of these faults the annual revenue plummeted to under $1 million.
Now, I can understand if you try to use Windows 3.1 as a nuclear reactor control system or download some free program to keep track of your $3 billion inventory, but using commercial construction bid software to generate construction bids, or extremely expensive inventory management software to manage inventory is very reasonable use for the software. Yes, some bugs should be expected, but the program should do what it was designed to do. Allowing software manufacturers to run the industry in a caveat emptor (buyer beware) fashion will not be a good thing, for software or consumers. This court ruling is practically a green light to high-tech con artists around the country - hopefully some higher courts will disagree with this decision.
As another example of software liability, we need only look at Microsoft Outlook. Microsoft included a 'feature' (VBScript) that allows e-mails to perform many system functions undetected. Several times this feature has been exploited for viral purposes, with each subsequent exploitation becoming increasingly malicious (Melissa, ILOVEYOU, Mother's Day). How many times must corporate e-mail be shut down (each time costing BILLIONS of dollars) before Microsoft will be forced to accept some of the responsiblity for the havoc their programs have enabled - even if the acceptance is simply removing the offending feature?
Product liability is absolutely necessary, so companies like Microsoft don't add FORMAT_HARDDISK() 'innovations' to their e-mail 'features,' and so egregious abuses of the term "software engineering," such as the M.A. Mortensen and the NCR cases listed above, aren't the modus operandi for the industry. Small businesses need to be able to buy point-of-sale and networking software confident that they won't lose 80% of their revenue as a direct (or even indirect) result of the software, or else a free-market economy in today's high-tech world will not work.
PBS? Who the hell do you think you're kidding? That came directly from an episode of the People's Court....don't be dropping PBS on us like you're all educated and shit, and that an unnamed PBS special carries more authority than TV small claims court shows. Damned pretentious posts.
Software vendors shouldn't be held responsible for their bugs. Why? Because it's pragmatically impossible to create bug-free software when you're dealing with millions of lines of code. Even if it is possible, it is economically infeasible to bring the required level of engineering to every project.
Instead, software vendors should be made accountable for process . Software Engineering is a mature body of research on the processes required to produce solidly engineered code. If Brand X software crashes my computer, I'll just have to live with it unless I find out that Brand X rushed their development cycle, slashed their budget, hired script kiddies to implement last minute hacks, and spent a whopping 10 minutes testing the final product. If that happens, I should be able to sue Brand X into nonexistance.
We could even taken it one step further and imagine a codified set of symbols that software vendors could place on their packages to indicate the level of rigor used during production. Third-party certification agencies could back these claims, and people who sue would only win when the company failed to live up to their published level of rigor. Entrepreneurs take note! There may be a market for this.
-1, Too Many Layers Of Abstraction
But there is no "right to use" -- or rather, the right to use is inherent in legitimately-granted access to the software.
Under Copyright law, the owner of the Copyright has the exclusive right to copy, distribute and make derivative works. 17 USC s. 106. Your ownership of a copy gives you the right to dispose of that copy alone, but not other copies. 17 U.S.C. s. 109. There are limited rights that apply to owners of a copy of software, but few licenses grant title to the code. 17 U.S.C. s. 117.
The long and short of it is this: current case law overwhelmingly finds that the loading of a COPY of a computer program into RAM for execution constitutes a copying of the software. Such copying violates Section 106 and is therefore an infringement unless excluded under Sections 107, 109 or 117. This is generally not the case. I gave complete citations to these cases last month, and don't have them at my disposal now (I recently abandoned my legal practice to get back to tech work), but the party plaintiffs, respectively were MAI and Southeastern, and they were both 9th Circuit cases.
Whatever you might think should be the law, let us not pretend that we are doing more than wishful thinking in this regard. If GPL grants no right to use, then under these cases you don't have a right to use the code. For this reason I prefer the more "liberal" construction I give to those licenses.
Best to all,
A
If software fails to perform as advertized, or causes data loss, the software manufacturer should be liable up to the cost of the software. This is good, because it does what we expect - free software authors are not liable, and commercial software authors are liable up to a reasonable point.
<BR><BR>
The reason this makes legal sense is that it is a company's responsibility to protect their data. Even a perfect software system is vulnerable to theft or human error. So companies should be making back-ups regularly. But if software doesn't perform as advertized, then it is a defective product. The software company should certainly be required to provide software that does what they say it will do.
-Dave Turner.
Become a FSF associate member before the low #s are used
It's easy, just send emails and faxes to the State Legislators. Maybe a nice Mother's Day present ...
...
Just go hrere and follow the links.
We have a Governor, an Attorney General, a State House of Representatives, and a State Senate who are all dying to hear from you
Will in Seattle
wish I knew ...
...
I just hate clicking on the Perview button
Will in Seattle
By this rationale, if I gave up on the rights to redistribute the software, I'd be able to sue the ass off anyone who wrote it, as the disclaimer in the license would not apply.
(8-DCS)
Actually, the description of the original contract is in there. It is the Purchase Order which listed the quantity, price, hourly rate, etc. The majority said that, although other cases (Step Saver, etc.) said purchase orders were contracts, it isn't a contract because the PO came from the end user not a reseller. The dissenting opinion said that the merchant/user distinction ws not relevant and the PO is a contract.
We are not talking about having to reboot a computer that locked up. We are talking about a $1.9 Million error in software that was specifically designed to calculate bids.
Another fact that has not been mentioned was that the software company was aware of the bug before the minor mistake happened and they did not send any notices or patches.
According to the opinions, the engineers decided that it would be easier to only replace the software for customers who complained.
If I recall correctly, a car manufacturer got fined big time for desiding that it was cheaper to pay for injuries caused by a defect than to issue a recall. Maybe car manufacturers should start their own version of 'shrink-wrap'. Put a notice on the steering wheel, "By starting this car, you agree..
As a side note, the court would have had to rule differently under Maryland's version of the UCITA since waivers of implied or express warrentee are not enforceable.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
Basically, the PO spells out quantity, price, delivery date, payment terms, etc. The desenting opinion and the judges in the Step Saver case said that the PO is a contract. And, the shrink-wrap licnese is a modification to that contract. Since the shrink-wrap has terms that are drastically different from the PO, e.g. you are not buying the software only licensing it, it has to be explicitly agreed to. If the seller does not make these terms known before they ship the software, it is much harder to have the shrink-wrap upheld in court.
I don't have any problem with selling things 'as-is'. Hell, I have bought cars and a houses as-is. The seller did not make any express or implied warrenties about the items. But, and this is my main problem with shrink-wrap, it was known that 'as-is' was the terms of the sale BEFORE I paid any money.
If software companies want to sell their software as-is, then they sould be up front about it and stick a bright red sticker on the box. The reason software companies don't like this solution is that they are trying to have it both ways. All the protection of an 'as-is' sale while giving the illusion that they are standing behind their product.
My other problem with shrink-wrap is that you can't get your money back if you disagree with the terms of the contract. To me, this boarders on fraud.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
This will be about the very existence of megacorps like the major oil and agro/pharmaceutical companies - and the sustaining of vast wealth differentials. We can go two ways in the nanotech future - even more blatant criminal exploitation, through "free" contracting (yeah right!) and government-backed monopolies, or participatory democratic socialism (not totalitarian socialism which is completely different). It'll depend on whether there is enough resistance from the population at large - but the WTO and IMF demonstrations are somewhat positive signs for the future.
Female Prison Rape in NY
I can design a bad product, cost the people who use it millions and get away with it? Sweet...
And how about an old lady who forgot her glasses home and just buys the first can she can see?
That's simply stupid.
How about some aspirin in which you've got some 1,3 Paradicloxyfluorwhatevergarbage? You are in a hurry: do you buy it or go to another store?
Do onto others what you want them to do onto you.
They were licensed.
I don't need large brains to have a good time.
The capitalist system has begun an evolution. Spurred by corporate power, we have entered a new economic system I'll call License Economy.
The waning form of capitalism, the one where goods and services are exchanged for units of value, slowly yields to the new capitalism. In the new capitalism there are no goods, only services. Services are services. Goods are services. Maybe even money will be a service.
The necessity for the License Economy is clear--As the digital media companies have discovered, as the complete cost to reproduce a good approaches zero there is no incentive to purchase the good. In order to profit from a "good" in the License Economy, the goods must magically become a service; therefore converting the good into a revokable and scarce commodity, creating "value" where none existed in the economic sense.
The trick is that the License Economy will seep out of the digital domain. Licensing reliably increases margins on every non-consumable good put into the market. After all, isn't the idea behind capitalism that as the domain of the economy expands, the cost to produce a good approaches zero because of competition and trade (ignoring for the moment as economists like to do, the depletion of natural resources)?
e.g.: My client is an architect. The plans he drew for your house are an expensive combination of engineering/drafting school, knowledge of local and national code, and art, too. In fact, so very much went into your house: the blood of the construction workers and the marketing of the mortgage company, that, well, you need to pay a royalty of just 1% of your montly payment to these hardworking artisans in perpetuity. In addition, if you should ever sell the house, this does not negate the hard work and creativity put into building that house, so your buyer will need take over paying the royalties. Should you care to make an addition to the house, well, you will need to run it by the architect--to make sure it is in line with his artistic vision. He certainly has the right to control how his art is used!
What? You want to defraud these craftspeople? How will they make their living?! Etc, etc...
All long-winded allegory beside, as long as descretely ubiquitous licensing is permitted when purchasing software, it will certainly follow elsewhere, mutating goods into services as we relinquish our notions of personal property and of ownerwhip to the corporations. Sure we'll get to buy our toothpaste and other consumables, but the moment we decide to avail ourselves of a product that might stand a change of outlasting us--a corporation will be set to lease it to you, with certain provsions (for example, upon your death posession is transferred back to the parent company... Those ConGlomCo shareholders worked hard hours to assemble those raw materials into a telephone and hey certainly have a right to profit from it in perpetuity!)
NDAs are licenses for knowledge. The corporate battle against the expiry of copyright will continue to encourage the unending license of all recorded works. Oh, and does anyone remember having to lease a telephone from MaBell? Well, that's the work of a pathetic internet startup compared to the intrusions we can expect with corporate oligopolies in every corner of the market. (Here, I'm mostly talking to those pro-monopolists who decry the MS trial with "Back when ATT was in one piece was the last time I could orgasm.")
Ownership is obsolete. The money's in licenses -- and not just because you can disclaim everything under the sun; you can do that, and still own what you're "selling" too!
Does any of this sound strangely like a certain... underappreciated economic model?
I don't need large brains to have a good time.
to software liability. This seems to have been a very good call by the court. What the software is depends on how it is used. In this case it seems to have been a 'tool', a 'labor saving device' as it was used to save the user a great deal of hand calculation et al. This is not a simple tool i.e a hammer but a complex tool more like a large integrated fabrication device ( welding robots etc.) No user of complex tools in the meat world would think of using a new tool for production without running a number of preliminary process tests first. If then they find the product flawed the return to the manufacture and either get it fixed or demand their purchase price returned and find another source. Any one who 'assumes' that a complex product is flawless out of the box should reap his just deserts...
morturii
"The Personal Hammer is $35.00; the Enterprise Edition Hammer is $550.00. In all other respects, the hammers are absolutely identical."
You open an electrical supply catalog and find two 3-prong, grounded 110-volt wall sockets. One is $2.95 and labeled "UL tested". The other, labeled "hospital grade", costs $39.95 and is in fact identical except for being made with a plastic of a different color.
The difference is the amount of liability the manufacturer is assuming should the outlet fail.
This comment is NOT flamebait. Political pressure is unfortunately an influence on most all political figures.
That's fine, as long as you know what you are buying. If the license can be viewed before buying the product, that's fine with me. But if you buy something, and then later find out: "This is our product. but if it doesn't do what it is supposed to do, that's your problem and not ours" that's a whole different matter. especially if you can't return the software (not uncommon in the netherlands. You open the box to view the license, and if you don't agree there's no way back)
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
flamebait ?!? overrated perhaps, but flamebait ? sheesh.
Hates people who have stupid little sigs
I don't know if judges in Seattle are elected but I wonder if the political clout that Microsoft wields in that area could have affected this case. It's clear that judges are not immune to political pressures, especially if they are elected (see Florida state judge who buckled to Cuban community...she was soon overruled by an appointed federal judge).
Hates people who have stupid little sigs
As a rule of thumb every round of testing cuts bugs by a factor of ten, and costs as much as all the preceding rounds of testing put together. I don't dissagree that it's pragmatically possible to write perfect software, it's just not that affordable within the corporate model of software construction.
Hello... Washington state uphelds shrink wrap licensing?!?!? Well, I'd respond to this "news" with a resounding: DUH!!!
That's like saying that the city council of Berlin had endorced the invasion of France and calling it news.
The only real question here is: How much did each judge cost, or did gates get them all in a package discount?
And perhaps then, will Washington be the second state to pass UCITA? Hell, I'm bloody well supprised that it wasn't the first. But all that shows is that AOL was a bit quicker in it's own blitzkreig.
Well, at least the govergnment is FINALLY starting to react. Though it does seem to be too little too late.
john
Imagine all the people...
> Then maybe the law should not allow the disclaiming of such reponsibilities, by contract or otherwise.
People can contract their rights away. That is an unalienable right.
Yes, it sucks that people have to put up with software-has-no-liablility. Buy better software is one of the solutions.
> Just because I don't own something that I paid for doesn't mean I'm not entitled to receive something that works.
Unfortunately the software licenses (or contracts if you will) are carefully worded so their is no ownus or liabaility on the software. Meaning you are "not" entitled to something that works, since you waived all those rights via the software license. Nice guys aren't they !! NOT.
Cheers
How about advertising claims like "unstoppable" NT or "98% uptime" then you read the disclaimers that admit its all BS.
I'm getting slightly off-topic here but if a company can't back up its claim with a reasonable warranty should they be allowed to make any advertising claims at all?
B/c thats rarely the case. The OS shouldn't crash b/c it doesn't know about some hardware. I've personally had 2 hardware failures in the past 8 years, an hd failure and an mb failure. Neither were caused by software interaction. If a computer with a good soundcard it in crashes due to a soundcard OS interaction, guess what, ITS THE OSES FAULT! The OS should not be brought down by such a trivial thing. Obviously it cannot withstand faulty hardware, but hardware it doesn't quite know about...there's no excuse for that.
I'll tell you why companies use software for critial things, and that software doesn't come w/protection. Its b/c NO ONE offers any such software, and why would they? There is no incentive to make themselves more vunerable, and no other company is willing to do that to get one up on the competition. Just like my cable company or phone company don't really bother with service when things go wrong. What am i gonna do, threaten to get another cable or phone company? Hah, even if i could, the other phone/cable companes would be just the same.
I mean, do you think a car company could just take no liability for sending out thousands of cars with bad brakes?
Well, according to one of my professors, if you sign an agreement not to hold them to anything and they don't claim the car is perfect, then yes, they can do that. Of course that kind of thinking doesn't make any sense, but this is america we're talking about.
But what do you see at 0? Chaff and trashtalk.. Everyone that has something useful to say gets an account!
/. had smaller readership, you could tell the good from the bad by the name attached to it. I knew Taz ran Debian, that FiberBurn was a MCSE that hated Microsoft, etc.. Moderation and karma were meant to replace that need for built up trust. You could look at a users information and see what his peers thought.. A newbie could tell that Shoeboy, while a Microsoft employee and thus hated by all, was also well-regarded. This was especially useful in the uncharted flamewars to tell which side was slinging shit.
And why this draconian moderation system, with -1 trolls and +1 karma whores? There are too many of us to be a true community. When
Hell, the only reason I know you've been here before is that your moniker was also used by a local gamer for years and stuck in my head.
.sig: Now legally binding!
Anonymous Coward's "You get what you pay for" actof 1992
There you have it, folks.. Independant confirmation of what I have told all of you time and time again. Ted Kennedy is the hot grits guy.
Did you believe me after I told you the shocking but true news that Bruce Wayne was Batman? No, you waited for that bitch from the Gotham Gazette to tell you. Or back in '84 when I told y'all that Bill Gates was a megalomaniac that wanted to corner the tech market? No again.. You waited for The Wall Street Journal and Judge Jackson to spoonfeed you!
If there are any that doubt that Ted Kennedy is the hot grits guy, speak now so I may beat you down with other stellar prognostications come true. Yeah, Elfbabe, you can just stay out of this one. We all know you're really Maria Shriver. No defending Uncle Ted...
.sig: Now legally binding!
Too much work for the casual poster, and far to much for the addicts.. I don't want to have to contemplate the intricate use of moderation points with each and every post. And a lot of users would just dump their points on themselves. Profanity is a perfectly good way to express yourself. I personally tend to mix four letter profanity with three-letter acronyms for a rather interesting spectatorial effect.. Slashdot needs a good fuck once in a while to get it going..
.sig: Now legally binding!
They're words. Get over it you twit. I suppose you tune out black people whan they invoke a cultural colloquilism as well. If something is bad enough to deserve the label, I'll damn well use it!
.sig: Now legally binding!
Reading over the legal mumbo jumbo from the case, they mention that Timberline software turned up an internal memo demonstrating they -knew- the bug existed and could reproduce it by meeting only 4 explict conditions. The memo was dated 1993. The memo states that the 4 conditions are "unlikely" so therefore the bug is "unimportant".
Sheesh! Silly people.
I think this just gives more props to the virtues of GPL software -- it gives the -user- the power to decide if a bug is "important" or not.
A W S ----------- QABO : BALA
In addition, Borland 3.0 (a 16-bit compiler) is the fastest C/C++ compiler I've used. For many of the projects I work on, I try to get my program to compile with both Borland 3.0 and DJGPP. One project I even try to keep working in Borland 3.0, DJGPP, and Microsoft 5.0, and this really keeps me on my toes ("killproj"; removes
(Note that I'm not acusing you of actually saying "you should have used a 32-bit compiler", because you were being humorous.)
--
The shareholder is always right.
So, is software a good? A tool? Speech? Art? Toy?
--
The shareholder is always right.
Perhaps soon there will be laws requiring liability for lemon software just as in the automotive industry. (lemon laws) That would be a significant problem for shareware/free software authors.
*crosses his fingers and hopes this doesn't happen*
What might possibly come out of a such an arrangement is an association or fund for small-time software developers that pays for litigation, insurance, etc. (maybe something of the sort even exists and I don't know about it)
--
The other side is crowded. The dead have nowhere to go.
The media that reports on software, reviews and such about the software, needs to report on the shrinkwrap license terms and conditions, as well as the features of the product.
As compared to an automobile, and equally complex beast, would you buy a vehicle that disclaimed any suitablity for any use you could expect of it? and came off the lot "as is"?
No, and the market now expects things like 10 year powertrain warranties on vehicles. And it doesn't remove the user from liability over usage of the product.
The warranty terms and conditions needs to be one of the "features" that gets reported on. All those promises up front don't mean anything if the fine print takes it all away.
This is interesting.
For years, I've been operating under the (apparently false) assumption that these "licenses" were not legally binding.
Oops.
In fact, I was under the impression that they had been *struck down* in court before, and found not binding. That they were just a scare tactic.
I'll have to start reading carefully, so that I don't become a towel boy in Bill Gateses' mansion/ fortress like Dilbert once did!
No comment at this time
No, the
Not all of the
While I tend to agree with Justice Sanders' dissenting decision, this court case is probably good for me as a professional software developer.
I have nothing against open-source, but I have yet to find a (good) paying job that will let me do what I do writing open-source.
-jerdenn
I hate that the construction company that lost $1.95 million can't do anything about it, but I do think it is good that the license was upheld. A lot of software is owned by individuals, small companies, and universities, and if they were forced to warranty their stuff, then these sources of software would evaporate.
The real question, though, is why would someone trust Very Big Things (TM) to software that doesn't come with some wort of protection. You wouldn't buy a new car that didn't have a warranty. I don't think that the Pointy-Haried Bosses (TM) out there understand how vulnerable they are under the current system.
I think that this is where Free Software (TM) will shine. I'm not sure whether Free Software on the consumer level will really catch on, but this is, presumably, an important program, which won't be upgraded every three months to take advantage of 3D graphics and shit. Because it is an important program that will last them for a long time, it will be economically feasible to have consultants come in and tinker with the source code if necessary.
I think that if the software in question were Free, then if the bug was present, it would only bite once, before somebody fixed it, which would probably happen before someone lost $1.95 million.
Anyway, I think that consumers should begin to demand more out of their computers and hardware. For software that manages lots of important stuff, they should demand warranties and/or source code to be included in the price of the software.
I really hope that the coolness of Free Software will cause consumers to stick up for their interests more than they've done in the past, and that these software houses have to quit acting like mafia families.
Take care,
Steve
========
Stephen C. VanDahm
I've read alot about shrinkwrap license issues lately. Personally, I don't care for them, but I think companies have the right to include them if they want to. These licenses will generally get more restrictive and accept less responsibility until consumers say enough is enough. Maybe this case will start that trend, if enough corporations hear about it.
/. might tell you, corporations can be affected by shrinkwrap licenses as easily as consumers. Corporations purchase quite a bit of software. Sooner or later, some CTOs are going to say "hey wait a minute -- this license is B.S." Let's use a different product.
Contrary to what
When that happens, you can be sure that companies will start competing on that level. Look at the auto industry. They offer WARRANTIES, as opposed to the computer industry which tends to DISCLAIM responsibility. As long as the computer industry is competitive, I think manufacturers will begin to accept more responsibility for their products.
If you get monopoly situations, on the other hand... well - that invites shrink wrap license abuse.
Best regards,
SEAL
Yes, but it would require software companies to spend a comparable amount of money in developing a piece of software vs what automakers put into developing a new car.
Consider that it takes dozens of engineers working for a year to produce a car design for the new model year that is identical to the old model except the seats are redesigned and the instruments are layed out differently.
In a typical commercial software company, how much time & money would be devoted to ensuring that small changes like that don't introduce new bugs?
The decision in the article is a great case-study of what this site warns about.
There's a classic set of Dilbert strips parodying shrink-wrap licenses:
Bill Gates' Towel Boy
I agree with nearly everything you've said, except this:
If the law changes to make software manufacturers liable then software would become too expensive for us all.
If software manufacturers were liable, I think it's more likely that companies would do a lot more in-house development.
This is almost definitely a step back just as long as they didn't share progress with each other, but it's not entirely going back to pen and paper.
However, dynamic linking works completely differently! When a program is dynamically linked to a library, some information is placed in the resulting executable as to what library files need to be accessed. No portion of the library code is placed in the executable image. Why is that creating a derived work from the library?
It isn't. It's just wishful thinking.
If I use a GNU tool, I don't have to check the text of the GPL every time. I'd like to be able to do the same with commercial software: read up on the "standard license" once and then not bother.
With an effective GCL, I'd just check the box for the GCL sticker (Or the site for the icon). If it was lacking, I'd know that there might be something to watch out for.
That said, I think that the implications of allowing cusyomers to sue SW companies for millions in damages is scary, shrinkwrap license or not. A warranty is a separate item, if someone wants it they should pay for it too. If I don't want to pay for it, I get cheaper software, but at a greater risk. (or rather with lesser means to get any money if something goes wrong.)
All opinions are my own - until criticized
So, while your suggestion that we audit their processes is a good one, it does not go far enough. Good processes can produce bug-free software, for any purpose, with any group of (qualified) people.
It's rare that you're presented with a knob whose only two positions are Make History and Flee Your Glorious Destiny.
This was presented to us in school as a case study, and I have no source for it, but IIRC, the error occured if the operator of the x-ray machine typed in the wrong value of the radiation dose, and then corrected it (changed the value on-screen). In this case, a bug in the software caused the X-ray machine to put out the maximum power to the tube.
The patient felt a unusual sensation and jumped off the machine. He died a few days later.
Your wallet stays open. Our source remains closed. We are MSFT
Not to mention that, under this system, I have to do unknown amounts of additional research every time I see an ingredient name I don't recognize. From a theoretical libertarian viewpoint, this is all justifiable, but it would bring the economy to a grinding halt.
And before anyone says, "yes, but why would a company put botulin in a can of soup," consider the outset of Coca-Cola: including cocaine, in order to addict people to the soda and get them to buy more.
An awful lot of our high-speed, high-volume economy depends upon rapid purchase decisions, which would be impossible without some basic guarantees of reliability on the part of a vendor/manufacturer.
Reality has a conservative bias: it conserves mass, energy, momentum...
Bear with me for a moment while I play the devil's advocate. I quote from the GPL:
11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Now obviously one can argue that free software by nature shouldn't have a warranty, but that issue is irrelivent when it comes to the law. If we want this aspect of the GPL hold up in court, how can we argue against this recent descision? What if I charge a distribution fee for my GPL'ed software, does this mean that I'm lilable for the quality of that software? Some of use should calm down a bit before we are guilty of hypocracy.
Shouldn't a company be able to sell software with the understanding that there is no warranty? If I had over a million dollars relying on a piece of software, I'd go over the license with a fine tooth comb. Could it be that they just didn't want to pay for a higher quality product and a support contract, and they are just trying to screw the software writers now that it has blown up in their faces?
There, I said it. I feel dirty. Let the flames begin.
thePsychotron
Life is pain. Anyone who says otherwise is selling something.
I believe it was M.A. Mortenson's fault for not negotiating a better contract with Timberline, specifically one that replaces the shrinkwrap license with some other license that would make the software company responsible for bugs.
As an individual, I don't care all that much as to whether I can't reverse engineer my word processor or distribute copies of the game I just bought. I'm willing to accept some of these terms in a license agreement in exchange for a more inexpensive product. Nothing I do a product I purchase on my own is mission critical. The only thing I believe should be included in shrinkwrap license agreements for individual products is language that states that once effective, the contract cannot be changed and that a product takes reasonable steps to ensure that a bug in its code does not harm other aspects of the system it runs on. (One example of a product failing to take these reasonable steps is the "I Love You" problem that made headlines around the world. It would have been nice if Microsoft could be held liable for letting a flaw in its Outlook Express software destroy unrelated data and cause unnecessary network traffic.) I believe that only changes in the law will be able to ensure that this sort of language gets placed in individual agreements.
On the other hand, if I was going to be buying a lot (say $100K or more) of software from a vendor for tasks that my company depends on to do business, I think I would be a good position to tell the vendor that my company won't buy any copies of this product until you agree to replace clauses A, B, and C in the shrinkwrap agreement with X, Y, and Z. A software company would be stupid not to consider a reasonable such offer if not accepting it would mean losing hundreds of thousands of dollars in revenue. If the vendor rejects an agreement that would make them liable for damages their product causes, then as the customer, I would get the impression that they feel the product has serious flaws that could lead to damages in a lawsuit that exceed the amount of money I would be giving them to purchase the product. In this case, I would look at competing products, and failing that, "rolling my own" solution. If the large company goes ahead and buys a product as is and bugs in the product cause the customer major damages, then I believe it's the customer's own fault.
This ruling did not turn on a disclaimer of warranty, which the Maryland UCITA bars in some cases. It turned, rather, on a limitation of liability, which the Maryland UCITA permits. To quote the ruling: "the provision limiting [the plaintiff's] damages to recovery of the purchase price was not unconscionable."
Of course Maryland law != Washington law, and a Washington Supreme Court ruling is not a binding precedent in other states. Nonetheless, courts in common-law legal systems sometimes rely on each other's rulings for guidance. A similar ruling in Maryland may offer an out to free software developers trying to avoid a ruinous lawsuit.
--
So many "first post" idjits...so few moderator points... | Delenda est Windoze
--
Ooh, moderator points! Five more idjits go to Minus One Hell!
Delenda est Windoze
Ooh, moderator points! Five more idjits go to Minus One Hell!
Delendae sunt RIAA, MPAA et Windoze
I think that the main issue here is different statistical probability. Lawnmowers are faulty one time out of many, and software is faulty all the time. Biggy
I just handed an envelope containing DOS5.0 on six floppies to my wife. I asked her to read the shrinkwrap agreement and give me her opinion, without any other input.
She suggested cutting the envelope in half, leaving the agreement intact.
In other words, I can buy software, I can install software, I can do whateverthefuck I want with software, WITHOUT BREAKING THE SEAL THAT SUPPOSEDLY INDICATES MY IMPLICIT AGREEMENT!!!!!!
And best of all, all we need is ONE person to buy some software and cut the box in half to prove that the shrink-wrap agreement is null and void. No huge lawyer fees (much as I understand them at times), no subtleties, just a clear example of behaving appropriately.
Folks, if this goes as far as it should, please acknowledge my wife--Nancy B.. She may have just given us the ammo we need.
CB.
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
Why doesn't the implied warranty of merchantibility apply to software? It's no different from any other product. For instance, if I advertise a gadget as being able to receive and display TV stations, and it is actually an empty box with a gray glass window on the front, I can be successfully sued for false advertising.
How about fighting fire with fire? The next time the software company orders something, include a bomb in the shipment. Just disclaim it:
-- ;-)
Kuro5hin.org: where the good times never end.
One industry has finally become immune to responsibility for the produts it creates. How soon until other industries try the same tactic? Can you imagine buying a shrink-wrapped car? It's legal precedents like this that allow companies like aol and ms to operate with impunity. When is the software industry going to "get it"?
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.
That seems like a fairly sweeping disclaimer to me. I've used the GPL extensively with software I've supplied in the UK but I have no faith in this clause at all. Maybe now people in the US can have a little faith.
But seriously.. this is why I spend a small fortune on insurance. If you meet with a client and sell them something to cover their requirements then the law (UK) says it has to be "fit for the purpose for which it is sold" (psuedo-quote). I don't know about the US but I've been advised by my insurance company that they cover the costs of buggy advice/software I give to clients.
Saying "I told you not to trust it/me" doesn't cut it in their eyes. But then they've would say that and if I got sued they would try very hard to avoid paying out...
0daymeme.com: Great stuff.
What do you mean I have to "agree to"?
This is what I normally do on a Saturday morning.
I didn't look too closely at the decision, but I think the following scenario has merit.
Poor schmoe uses a horrible operation system. Said operating system dies taking down the users work (regularly). Can that user now sue the maker of the OS as not being fit for the purpose sold? How about if the OS has been documented by the producer admiting to the existance of oh, say 65000 bugs? If you only had 2 hours worth of work at 25-30 $/hr $50-$60? Just an idea...
"By reading this letter out loud, you have waived any legal responsability on our part in perpetuity throughout the universe."
I remember watching a PBS law special on this type of argument. The main argument was the liability of a "provider of goods" to the consumer. The main case-in-point was a gentleman who chipped his teeth on a pearl he found in an oyster. Should the proprieter of the restaraunt be held liable for any damages?
The argument, and the law, is this: The manufacturer/proprieter cannot be held accountable for any damages encurred from something one could reasonably expect in a good. So...can one reasonably expect bugs to be present in a given program? Unfortunately for the consumer...the answer is a resounding YES. The manufacturer's claim is furthered by the fact that the consumer, in this case, agreed to the terms of the software. While you may not, in a court of law, sign away your rights as a consumer, there is no constitutional, or otherwise, right to bug-free software.
caveat emptor!
FluX
After 16 years, MTV has finally completed its deevolution into the shiny things network
"It is seldom that liberty of any kind is lost all at once." -David Hume
GNU GPL is a non-shrink-wrap license. (However, if you are using InstallShield instead of RPM to install your packages, it is shrink-wrap.) Non-shrink-wrap licenses have no protection under UCITA.
Will I retire or break 10K?
...and receives no protection under UCITA.
Will I retire or break 10K?
All that's needed is a clause in the license that says that you aren't allowed to distribute the modified program as source or otherwise.
Troll Tech's QPL already does this; modified source must be distributed as patches.
Will I retire or break 10K?
Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License
Compiling is modifying. Linking is modifying (otherwise, there would be no need for Lesser GPL). Any irreversible transformation is modifying in the eyes of the law (tarballing or zipping is "mere aggregation," not modifying, because it can straightforwardly and automatically be undone).
So by compiling the program, you modify it and accept the License including without limitation the NO WARRANTY provision. The only way a program can be executed without being compiled would be:
Will I retire or break 10K?
The issue with linking is not that it's modifying, but that it is is creating a derived work from the library.
Again, IANAL, but modification == creation of a derivative work.
When a program is dynamically linked to a library, some information is placed in the resulting executable as to what library files need to be accessed.
Is this information (linker .defs) considered a "derivative work" of the GPL'd library? It seems to be in Cygwin's case.
Will I retire or break 10K?
Well, let someone who has no interest in using the software do it. They will waive their rights, you will use the software and keep the rights.
Nice one. IANAL, but without accepting the license, does the user have the right to copy the program into RAM (by giving commands to the shell) to run it?
While doing research for the answer, I found 17 USC 117 that makes the GPL equivalent to LGPL:
Pretty much destroys the "linking is adaptation" theory that is the foundation of viral copyleft.
Will I retire or break 10K?
How about if the OS has been documented by the producer admiting to the existance of oh, say 65000 bugs?
It seems that M$ reported 65,535 confirmed issues because anything higher than that would overflow the data type unsigned short. Sounds like they wrote their bug tracker with an old 16-bit DOS compiler. The scandiskers (can't say fsckers; this is M$) should have used this 32-bit compiler (a Free one at that) to make their bug tracker...
Will I retire or break 10K?
Either that, or they wouldn't buy the product. People might use a product that didn't have a warranty if it were free (no cost) and came with freedom (to change it as the owner saw fit).
Hmm.........
--keith
-Elendale (wait a sec, that would kill closed source! Maybe it is worth a shot)
IANAT (I Am Not A Troll)
Buy some software. Find the license. Read it. Find what you have to do to agree to the license. DON'T DO THAT. Open and examine everything else in the box without doing that which would agree to the license. If to agree to the license, you have to click somewhere while installing, go right up to that point and then decline. Return the software and insist on getting your full money back without a restocking fee. Be prepared to sue in small claims court to recover your full amount spent.
Anomalous: inconsistent with or deviating from what is usual, normal, or expected
Anomalous: deviating from what is usual, normal, or expected
Canard: a false or unfounded repor
Here's an excerpt from the dissenting opinion by Judge Sanders:
What this makes me believe is that the majority broke with precedent to uphold the license agreement because, in part, the party using the software was not an end user.Here's one other point---I guess I thought of it when I read this from the dissent:
There has to be acceptance of the contract, by both parties, no? Well, I can't just make something up, say it qualifies as your acceptance and by my saying it, make it so. Compare: Suppose I send you a product in an box and write on the outside "If you blink 3 times, eat lettuce later today or take off your shoes, you have accepted the following agreement..." Just because I've said this particular action on your part constitutes agreement, does not make it so.Plus, it's Washington state. Just don't do business with software companies from Washington state.
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I hadn't realized there was so much incompetence - verging on negligence - involved in the case. You make a very good point; I find it hard to defend the software company's actions given these facts.
I understand people's doubts about shrink-wrap agreements. They should certainly be more up-front. I just fear the day software companys are made accountable for losses due to bugs in their software. Consequential losses could be immense for even the most trivial or obscure flaws in the software, as in this case. I don't think I'm exaggerating when I say it could bring the software industry to its knees.
Ah well, at least no-one's going to sue a games company like mine for loss of earnings ;)
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It's a
-- Danny Vermin
Don't most shrinkwrap licenses explicitly say "if you don't agree to the terms of the license, return the package for a full refund"? It would be extremely harsh if one did not, but the few I have around here certainly do. I'm sure if that ever came up in court the plaintiff would win the refund.
My pet peeve is books which come with CDs (which you not only pay for, but in the UK at least it makes the book subject to VAT at 17.5%) which have Windows programs on plus 4K of C listings, covered in a shrinkwrap license. I'm sure every one costs me an extra $10, and I never install them. But that's only marginally relevant ;)
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It's a
-- Danny Vermin
And I can't believe that this comes as a surprise to anyone! When was the last time you had any legal recourse for bugs in software? You have to pay to upgrade OSs and applications - often the supplier is good about it and charges nominal upgrade fees for 3.0 to 3.01, but for 3.0 to 4.0 you usually have to pay.
The only really bug-free software is used in life-support systems and the like, and that sort of software is fantastically expensive to develop, using formal proofs and Z-notation and all a large corpus of highly-qualified staff to ensure that it is 100% bug-free. No one reading this could afford to buy a copy of any software written this stringently.
The people who are complaining about bugs in software, and who think they should be able to sue companies who put out buggy software, should consider this: If the law changes to make software manufacturers liable then software would become too expensive for us all. Even corporations couldn't afford it. The entire computer industry would just die. We'd go back to using paper and pen ... and mistakes would still occur. (I can't believe these bozos who lost $1.7 million on a contract didn't cross-check the figures before quoting them!)
And Open Source software ... well, if the Open Source community had any liability for the quality of their products we'd all be screwed. I'm not saying that OSS isn't high quality, probably higher in many cases than equivalent commercial software, but a change in the law like this would require guarantees of zero bugs, and that just ain't gonna happen.
Be careful what you wish for. I'm quite happy with software that comes without guarantees. The alternative is just too horrible to contemplate.
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It's a
-- Danny Vermin
Didn't NT bluescreen and stop a US warship dead in the water for about 4 hours. What did the Navy do about that?
I just read this in Eric S. Raymond's book (The Cathedral and the Bazaar). He made the point that current software liscenses absolve software makers of liability...making the "at least I can sue X company if thier software is faulty" argument for closed sourced software a null point. And here we have it a real world example of that point. Hmmm, I wonder what it's like to be right all the time...
If Mr. Edison had thought smarter he wouldn't sweat as much. --Nikola Tesla
Part of the reason for this discussion is that there's no governing law. The court has nothing to work with besides the shrinkwrap license agreement. For a hammer, the Uniform Commerce Code applies. But it has not been applied to software.
UCITA, whether you like it or not, or its variants would apply to software and to cases like this -- provided that the construction company were in a UCITA state. What do /.ers think that software developers' and purchasers' rights ought to be?
Should there be a "software bug insurance" industry?
Remember, Lotus 1-2-3 got involved in a case like this a long time ago. Lotus won that one, not because of the shrinkwrap license, but because they proved that the construction company entered the wrong formula in the spreadsheet.
if you want a garantee, buy something from someone that sells you one. Everything has a price. Don't cry if software good enough for a mars mission (oops bad choice), moon shot, costs much more than a few hundred bucks.
Lawyers make whining way too adult an excersize.
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This applies particularly to for-profit software. If a company chooses to profit as a result of the positive aspects of it's software, then it should be liable to losses as a result of the negative aspects. You've been paid money for making it, and when people buy something with their dollars then I'd say whoever's selling it has a moral, if not legal, obligation to make sure that it works.
Then maybe the law should not allow the disclaiming of such reponsibilities, by contract or otherwise.
Oh, and you don't own your software, either. You gave title back to the vendor when you "agreed" to the "license.
Just because I don't own something that I paid for doesn't mean I'm not entitled to receive something that works. I'd stand by the above if I leased my lawnmower.
They'd have to recall the product, fix it, and they'd be liable for damages to the person maimed. And if they said "this lawnmower is sold on the basis that if something goes wrong, it's not our fault" and tried to use that as an excuse, people would react with either outrage or downright laughter.
to get away with this. Then again, neither should open source, but, in the case of open source, there's almost always a bug fix, isn't there?
It just goes to show you, closed source is not good. It's the opposite of good. It's bad. All that's needed is a clause in the license that says that you aren't allowed to distribute the modified program as source or otherwise. That's what I would do...
When the pack animals stampede, it's time to soak the ground with blood to save the world. We fight, we die, we break our cursed bonds.
Chris 'coldacid' Charabaruk Meldstar Entertainment
End the kharma-whoring system alltogether. There is no reason why every individual post cannot stand or fall on its own.
Should vendors be liable if their software is incompatible with a 3rd party driver or some POS peripherial??? Computers are far too complex and too many things unrelated directly to the software can go wrong.
Who do you sue if a sound card-OS interaction crashes the system? I bet I could design a sound card that crashes a computer. You have parts from maybe 2 dozen or more different vendors and you want to blame the software maker?
How's this for a "solution"? You want a guarantee? Then you run the software on hardware and with a configuration of the providers selection with no unauthorized software or hardware! And only certified professionals can touch the machine.
To blindly trust any piece of software especially for a multi million dollar deal such as this is to say the least a somewhat risky. I don't know how much testing was done prior to using this software, however, I do not see any reference to any attempt to do a parallel run between the old and new systems. Also note that the bid was submitted even though the sofware failed 19 times with an error message. I do not see any reference to any attempt to call for technical support when the error occured.
Many software developers are not Multi National Conglomerates that can easily eat a multi million dollar liability in the event of a simple software failure. Such disclaimers are necessry to stay in business. What a software company can do is provide timely technical support. A bug of the nature described (System crashing 19 times on day of a major bid going out) would have been most likely classified as a show stopper and all hands necessary would have been mobilized hopfully to provide a same day solution (At least that's the way our company works). Unfortunately, the technical support option can only work if the client reports the problem. In this case the plaintiff in my opinion is as much to blame if not more so than the software vendor.
134340: I am not a number. I am a free planet!
Don't assume that because you don't charge for the software you produce that your liability would be zero.
People who have a swimming pool in the yard get sued all the time when a neighbor kid gets hurt in it, and they weren't charging that kid to use the pool.
Buggy software could be seen as an "attractive nuisance" by some courts. This precedent helps block that from happening.
Anything that results in less "lawyer food" being out there can't be all bad.
Well, I have a hard drive downstairs in the lab here at home from Western Digital that makes a "knock" "knock" sound on power up now. I guess I'm not gonna get Slackware 7.0 booted on that machine again anytime soon. I'm glad that I'll be able to send the drive back to WD. It'll be the second replacement drive now. (the last one died as a result of a 3 in the morning power cord plugged in backwards (worn, unsafe power splitter...)
So, yes. Some companies DO stand behind their product. In my case, that's why I tend to buy WD drives... they stand behind them.
...and it arrives DOA or fails after a week or so I can send it back and get a replacement or an alternative product. If I buy software, say word, and find a bug (only one?) that prevents me from achieving something it claims it can do or that it even make the program crash (cursoring through a foot note), I get the impression it's tough-shit matey.
Why is this?
When I first used office97, I couldn't believe how quickly I found bugs. Note: I'm not a power user looking for obscure functionality. How did these get through all those "beta" testers, let alone through microsoft's own programmers and testing environment (I'm assuming they don't still ship anything that compiles as alleged may times before). If you're luck you'll get a service pack after a few months which may or may not correct your problems, and it may even introduce more of them and force you to intstall their latest browser whether you want it or not. (I'm also aware of technet or whatever it's called)
I know the problem isn't purely with ms, maybe the companies that write for that particular OS are more guilty than others and should stop trying to release a new version of something every x weeks, just because Joe Thicky (sorry to all those Joes!) is dumb enough to buy/pirate it. Creating a solid product doesn't seem to be a high priority anymore. I'm not interested in marketing deadlines excuses either, as it clearly hasn't been a problem for ms living off vapourware.
The above is of course referring to commercial products made by companies whose raison d'être is to empty the public's pockets, and not the fine work being undertaken by the GPL peeps.
The issue here is a trend to protect the software industry beyond reason, why this is so is a good question.
The judge used the prevalence of shrinkwrap contracts as evidence of their acceptance, and even had the audacity to suggest that this 'fact' is so clear that it can be decided summarily. He chose to ignored that the plaintiff's and all his agent's behavior clearly suggested that they considered the license irrelevant. Can you imagine an employee signing a meaningful contract for his employer without informing the latter?
According to the judges' logic, if grocery store owners starts sending letters to customers saying that by opening the milk cartoons customers agree to pay the store's annual insurance, than, this contract becomes enforceable over time simply because customers treat is as a joke and do not protest.
The crux however is that the judge insists on treating a mass marketed license to which one party comes as a matter of inevitable practice without legal counsel and with almost negligeable bargaining power using the template of a contract between two parties armed with legal counsel and involved in heated negotiation of terms: this is legal pulp fiction.
The court could have used quite a lot of precedents that set limits to what makers of such standardised and non negotiable contracts can put in their contracts. Why do software manufacturer deserve better treatment? because they are sexier and push the NASDAQ?
because bugs are an essential ingredient in software I would probably agree that liability can be limited here. Forcing the buyer rather than the seller to buy insurance is good in this case because without it much software would not have been written, and free software above all.
However, this particular case should have seen the jury because the bug may have been known, and the notion that the seller and buyer contracted freely that the buyer will pay for the seller's negligence seems absurd. A jury should have decided whether the defendent exercised due care.
This case is bad news: it is another one in a string of cases that shows the software industry as the new darling of the courts. With this kind of judges the industry may want to spend less
money on legal services...
-- look, cheese ahoy!
How could I be so stupid as to forget to include a license? Next time I write an open source project, please remind me to at least include a standard open-source license.
If anyone has a copy, can you please add an additional line at the top before redistributing it: "rem BY RUNNING THIS PROGRAM YOU AGREE TO DISCLAIM ALL LIABILITY FOR ANY DAMAGE CAUSED BY RUNNING THIS PROGRAM." Thank you, I love you!
The phenomenon of traffic deaths being necessary before safety measures are installed are, IMHO, a clear demonstration of the necessary role of human sacrifice in modern society. Other examples come readily to mind. I never did get around to writing that essay on the role of human sacrifice in modern society that I considered 20 or more years ago.
I recall that several people have died as a result of faulty software. Regrettably, I can only recall one in any detail. A variable intensity X-ray machine had control software which went bonkers when the operator typed too fast for the software. Result, the patient received a fatal irradition, rather than a therapeutic dose. There was (maybe still is) a moderated newsgroup that dealt with hazards arising from software usage where I read of these things.