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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.
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.
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.)
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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.)
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?
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
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
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.
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
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.
There's a classic set of Dilbert strips parodying shrink-wrap licenses:
Bill Gates' Towel Boy
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 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