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Comment To FTC On Software Warranties And UCITA
Bruce Perens writes: "The U.S. Federal Trade Commission is running a forum on software warranties and UCITA. This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors. It's of interest for proprietary software users because the warranties attached to software that you pay for are generally considered inadequate.FTC is soliciting written comments, the due date is Sept. 11. Full details on how to comment are here."
Hey dude, thanks for the link.
That's not a good example. It's more like if I eat a "boneless" chicken and nearly choke to death on a chicken bone, I can't win in court. Altough it's "boneless" it's a chicken and hence it's naturally with bones. You haveta watch out for them even though it's advertised as boneless. Likewise software attempts to be bugfree, but we all know that's not the case. You have to take reasonable care of your data to prevent against loss. (backup, ect) my 2 cents
Programs like cyber patrol have been shown to be consistantly effective...
There's the big clue, guys, this is a troll. Move along.
Seriously, though, I think what a parent really wants for kids is not an opt-out list, but an opt-in. That is, a list of trusted providers, possibly with the providers themselves asserting their kid-friendliness, and trusted organizations providing the list(s). So if you want safe stuff for your kids, you grab the list from the organization you trust (which may be a Netscape-style bookmark file, for example; or perhaps it's a portal URL that you add to your short list). You disable the direct entry of URLs. Not only is this "safe", but you may also find it easier to find the good stuff.
The web is international. Take away the common carrier status for ISPs, and purient interest stuff just moves to another, *freer* country.
Ooh, a sarcasm detector. Oh, that's a real useful invention.
heh. actually, you are wrong. i don't work for an ISP at all. if you had gone to the domain where my email addy is at, you'd've figured out right away where i work.
thanks for playing,
-l
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I can see how testing to see if a contract is illusory and invalidating it on those grounds complements the older test for consideration.
;) Obviously many people (including you, I'm sure) don't really care what I think.
Honestly, my gut feeling on this (I'll have to consider it for a while before my thoughts really crystallize some more) is that consideration encompasses illusion. Is it inaccurate to say that a clause which would be illusory is not if there is a valid alternative course of action? (e.g. I promise to pay you, if I don't we go to impartial arbiters...)
But I don't feel that consideration, no matter how weak, should be eliminated. What's wrong with a little redundancy or at the very least, a backup?
But I'm still not happy with the idea. We have a lot of screwy notions going around wrt the law. Getting rid of consideration sounds like one of them to me. So how again am I being unfunny and/or misinterpreting the law?
-- 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.
Well - my opinions on that case aside, it's about the only *software* case I've been able to find that involved what we call shrinkwrap licenses and shrinkwrap licenses alone. Nearly everything else involves some other action that engaged a contract instead of consisting of a sale. And there was not a firm trend in either direction by all the deciding courts. It's about a 50-50 split, and the Supremes haven't heard any such software cases yet.
There _is_ a good Supreme Court ruling on something similar. IIRC it's wrt books. (but isn't the case in the early 1900's regarding minimum resale price for books. That case did not involve contracts/licenses) Unfortunately I'll be damned if I can remember the specifics of the case I'm thinking of here. Can anyone with more time to research it help me out?
-- 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.
They're eliminating consideration because it'll be uniform? That's the stupidest thing I've ever heard. Bastards.
-- 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.
No - like I said ,it's not Bobbs-Merrill. There is an additional case IIRC in which sale was disguised as licensing, much as it was in ProCD. Clickwrap (as opposed to ProCD's shrinkwrap) at least requires affirmative action on the part of the owner to accept the terms of the license. I'm not arguing that clickwrap is unacceptable (though it needs to be a complete and viable contract, obviously) but that shrinkwrap is. I'll ask some people for the case I'm thinking of.
-- 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.
17 USC is federal copyright law. It's suprisingly enforcable. The doctrines of fair use, first sale, etc. come from a long line of constitutional decisions but are also written into law these days. (they would apply even if the law said otherwise; thank god for judicial review)
Which court decided that copying from one memory to another was infringing? Do you have any further information?
-- 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.
Well like I said around here someplace, once you legally obtain an authorized copy of the software you're free to use it however you want. You don't HAVE to agree to the GPL or the MS EULA. You can use it without agreeing. Managing to do so may be tricky when you have installers that won't do anything when you disagree, but they can be gotten around quite legally. Of course, IANAL, but this is pretty evident anyway IMHO.
-- 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.
FN5. Since MAI licensed its software, the Peak customers do not qualify as "owners" of the software and are not eligible for protection under s 117.
The trick is that if the license that licensees agreed to included giving up 117 being non-infringing, the ultimate decision of the case is understandable. Still kind of stupid, but understandable. The Triad case is also in this vein.
But when you go to the store and make a horrible mistake by buying a copy of Windows
In the case of GPL software, if you legally obtain an authorized copy (easy to do) you are not bound by the license, but since first sale has effectively occured, you are protected by 117. This is how I'm seeing it, anyway.
Really, software licenses aren't going to be able to supplant first sale in between purchase and installation (incld. agreement) unless there's a lawyer or someone at the store that makes you agree as a PREcondition of sale. Triad is actually a good precedent ironically enough.
-- 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.
Pray tell, how am I doing any of the above? Admittedly, it's news to me that consideration is being eliminated on a wide scale, but if the post I replied to was accurate, I fail to see the benefit.
-- 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.
Using a program requires loading it into RAM, which is considered copying. Thus, you can't use the program except if you agree to the license. If you have no license to use copyrighted material, you can't legally use it.
Your interpretation can be summed up as: "You don't have to do what I say, but then you can't use this software at all." If that's the case, then why did they bother stating it at all? The same is true even for Microsoft's EULAs. I don't have to agree with them, but in that case I'm not supposed to use the software.
If the software comes bundled with the computer, one might be able to successfully argue that the software is just part of the system the same way the CPU is part of the system, so when the software malfunctions, the system has malfunctioned and the manufacturer of the computer is then liable for (in the scheme being discussed here) up to three times the price of the computer in damages.
The only way the computer manufacturer should be able to get out of this is by itemizing the OS and other bundled software on the invoice and showing that they are free, and also offering the same computer system without an OS for the same price as with Windows. Not sure if they'd do that or not...
--
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
Yeah, it's been discussed here before, but there's one question that I've never seen asked: had the woman ever bought coffee at McDonald's in the recent past prior to that particular purchase? I suspect that she had, in which case she had firsthand prior experience with the temperature of McDonald's coffee and therefore had no grounds to sue, much less win, unless the temperature of the coffee that time was unusually high (which I don't believe was the case. Indeed, part of the reason she won is that it wasn't unusually high). It's not like McDonald's has a monopoly on coffee or anything...
--
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
Is this not what the UCITA provides? It sounds like something we should advocate. But it's bad for GPL, and we can't say that it only should apply to proprietary software, because then right from the start, it solidifies the anti-OSS who-can-we-sue argument.
Is there anything anywhere that lists what's required of these warranties? I mean couldn't you just attach a really dumb, simple stupid warranty to your program like - "I give you the warranty this program uses CPU cycles if you run and/or compile it?"
It's not that Free software should be exempt from warranties. It's that free software should be. I.e. if I give some guy a piece of code and specifically tell him that I don't know if it is perfect, he has no legal or moral right to demand any sort of warranty from me.
If he wants a warranty, he can buy the program from me. If he has given me nothing, he has no right to expect anything from me. It basically just boils down to that.
Basically, please explain how people should have to warrant their gifts.
They laughed at Einstein. They laughed at the Wright Brothers. But they also laughed at Bozo the Clown. -- C. Sagan
Eliminating consideration would seem to put the GPL on better terms, though. Some legal experts think the GPL has no force as a license/contract because there is no consideration. If consideration is no longer required for a valid contract, then that's one more way that the GPL is a solid license. Or am I completely misinterpreting this?
Your right to not believe: Americans United for Separation of Church and
I was doing a search for a citation for 'warranty' vs. 'guarantee' with special regard to software, and this link came up number #1. Google must've glitched a new meaning into 'software'.
I especially liked their fervent assurance that internal insertion of Curves® WILL result in severe bodily injury.
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
If I give you free beer, and you get drunk and have a serious car wreck, can I be sued or should I be off the hook?
now we need to go OSS in diesel cars
A beowulf cluster of slashdot addicts? Now that's scary...
--
All software should be covered by the same warranty. "If you are in any way not satisfied by the software, you are entitled to a full refund."
I think that could work...
We don't know how bad things are in north korea, but here are some pictures of hungry children. -- CNN
ReadThe ReflectionEngine, a cyberpunk style n
Because it specifically states that you do not have to agree to it if you don't distribute the software.
We don't know how bad things are in north korea, but here are some pictures of hungry children. -- CNN
ReadThe ReflectionEngine, a cyberpunk style n
I'm not sure how enforceable 17 USC 117 (a)(1) is, but the 'coping into RAM' thing was held up in Court.
ReadThe ReflectionEngine, a cyberpunk style n
in most european countries, any attempt to sue a free software developer will fail, because you didn't pay him any money.
greetings, eMBee.
--
Gnu is Not Unix / Linux Is Not UniX
i may be way off base here, but i seem to recall that the UCITA had some wording in it that disclaimed software creaters from any liability from damages caused to a business by the use of that software...? (or something along those lines?) ... i really don't recall the specifics of this, and it could very well have been part of one of the other whacked-ass laws that have been passed/proposed in the past couple of years ...
... that *hurt*!
-my pancreas! my pancreas! dude
but anyway.... the point is, scandisk did this when it ran automatically after a system crash, no user involvement at all.
Then again no matter what I don't think there is ever going to any comeback on companies for software bugs, they'd all be bankrupt in a week.
How would this work with free software anyway? You could put it up on a server in another country, even appoint someone from there as 'Project Coordinater' or some such. Short of somehow banning downloads from states with UCITA (you can get a cream for that) surely it is the users responsibility if they choose to download and use it?
~ppppppppö
Hey Bruce, if the GPL is a license-hence-contract under UCITA, doesn't that contract apply only to copying and changing the program?
ISTM that the GPL is not a license to use the software, and therefore UCITA doesn't apply to use of GPLd software.
I'm interested in your thoughts on this.
Why not put it in your code as well? (assuming you choose to release it.) Something along the liens of 'By reading this line you voluntarily give up all rights to support and warranty for this product'. However, this might be detrimental, if one takes the intent of making the source code public as encouraging others to develop it.
[ maur_at_technologist.com ] "For a sufficiently powerful message,
[ http://maur.litestep.com ] the medium is irrelevant."
I have heard that "devoid of consideration" argument in many circles; however, I was hoping to get a little more on the persons argument. Consideration may come in the form of an exchange of property, or through the forbarance of any legal right. IIRC from contracts, a man one a contract suit against the executors of his grandfather's estate when he agreed to give up smoking and gambling in exchange for a promise of cash. (too lazy to cite.) The developer of the software clearly gives up the right to alienate(that is keep them from using it in any way) a person from using his code. The consumer gives up the right to distribute the code, or any derivative work, without releasing any and all source code. If the software is totally public domain or res nullus, he would not have to agree to these provisions. He could do whatever he wished. Furthermore, if he added significant value in a derivative work, he could make a claim to the property under doctrines of accession (I have added so much to this property it should be mine, not yours.), or even in using portions of the code under fair use. By agreeing to the GPL, he forfits these rights. As best I can tell, the only way there is not consideration would be if the consumer has the legal right to distribute the code, thus, he has given up nothing. As may be evidenced on /., its clearly of interest to the developer to keep the software free. Obviously, I am missing something in the analysis b/c some legal scholars agree with the "devoid of consideration" argument. Unfortuantely, I cannot get anyone to expand their premise further. If you have information on their argument, please let me know.
The "RFC" which appeared in the Federal Register did a good job with explaining many issues in context in current law.
For instance, it is illegal to not allow the consumer to see the warranty, before the consumer buys it. In many cases, you can only see the warranty after you purchase the software and click the license agreement.
Maybe thee ftc will actually do something more than giving a waranty on the media only.
How can something like this even be considered? Beyond being simply wrong, it hinders the free speach and choice of the programer/coder and consumer. This is beyond pitiful
~~~ They call me Little John, but don't let the name fool you...in real life I'm very big.
All consumer software currently produced, pretty much without exception, has a clause in a shrink-wrap, click-through, or other agreement that stipulates the software manufacturer is not liable for damages as a result of using the software. Perhaps someone could clarify what this comment request is targeting, because it looks like Bruce Perens has very little idea what he is talking about.
This article at The Industry Standard nicely dispells the many myths floating around UCITA. Contrary to the many claims made, no, UCITA doesn't require software warranties or anything of the sort.
Sorry I can't make software because I can't pay for lawyers so i could make money to pay for lawyers so I could make software.
Lovely.
The message on the other side of this sig is false.
Still, the death of free software would almost be worthwhile if it meant Microsoft had to comply with strict software warranty laws. :-)
:-).
I don't think that Microsoft will respect any warranty even if law force them to. They are rich and arrogant enough to just ignore any law they don't like (and pretend this law is killing innovation, as usal
That's it. I'm taking the blue pill.
Is there any reason I should be liable when someone gets a program from me themselves and installs it on their own computer? Even for viruses / worms the program is sent to the user and "installed" without them knowing. I could be wrong - if I distribute free apples which are poisoned I would soon be behind bars, but I don't know of a specific law which applies.
Its time to blame someone and kill them!!! I say it the lawyers fault.
The current Slashdot moderation system is made by gay communists!
Sure. Require a warranty. But limit liability to some function of the price paid for the software/license.
Interesting idea. Unfortunately most copies of Windows (and many of Office, etc.) come bundled with computers at no additional cost to the purchaser.
No additional cost, or no additional visible cost? I can't imagine either Microsoft or Gateway, Dell, whoever not passing the charge on to the buyer somewhere... and unless things have changed drastically from the last time I looked at "pre-packaged computer systems" or whatever they call them, you had one price for Windows 95 pre-loaded, one for Win98, one for Office Professional, etc...
At any rate, you *can* buy Windows, Office, etc. off the shelf, so getting a retail price for the purposes of such a plan is hardly impossible.
In short, given that everyone from Microsoft down to Joe Schmoe has the option to disclaim all warranty under the proposed legislation (and I don't think this is necessarilly a bad thing), what is the point of passing the provision at all?
Perhaps the people involved with it didn't receive enough attention as children?
In any discussion of legal issues, a few things are apparent... 1) Most laypersons seem to operate on hearsay and whatever pseudo-logical deductions they make from what they hear. 2) Most lawmakers don't seem to have the time or the resources to research what they're legislating: they listen to what they hear from whoever sounds informed. 3) There are still a very large group of people who believe that the legal system, as opposed to common sense or simply taking a different approach, is the best solution to any problem. 4) Paranoia abounds, warranted and unwarranted.
So... laws get made, laws get broken, laws get misunderstood, and maybe two hundred years from now a major argument will start over "Well, what did they really *mean* by this UCITA?"
...is a recognition in law that when you purchase software it is a sale of goods and has all the protections attached to that. No more "we can revoke your license to use this at any time" any more than a record company can knock on your door and take away non-pirated legally acquired CDs. It would also remove the "yeah, its a bug - it will be fixed in the next release, which you'll have to pay for" response when a piece of software fails to function as intended - thats the sort of thing that requires a warranty they cant disclaim. It also sidesteps the free software issue, since that is publicly available and not for sale, you are not buying it and therefore aint getting any warranty. Of course IANAL etc etc but thats my 0.02.
# human firmware exploit
# Word will insert into your optic buffer
# without bounds checking
I had a
No, what he's saying is that warranty requirements should be the same for large corporations and for the guy who wrote a hundred-line hack and let it loose under the GPL.
There's a difference between that and saying what you read.
-BS
This deserves to be modded up.
--
This program is distributed in the hope that it will be useful, and with a 100% warranty that it is suited for it's purpose: to consume storage space on your computer's media. See the GNU General Public License for more details
The interesting thing is that with electronic documents, they probably won't have to give you anything on paper, per se.
do that open things up to changing warranties?
kicking some CAD is a good thing
If unnamed forces -did- go after publishers of Free &/or Open Source Software in the courts over warranty liability, I have no doubt that FS and OSS people would apply technologies (like the one mentioned recently in a /. article) that allow them to publish anonymously, at least until a new legal infra[sub]structure can be put into place that will allow them to express their technical prowess without any unwanted liability.
If you can't identify - let alone serve court papers on - a developer, who are you going to sue?
OTOH, a consultant providing & supporting FS or OSS - under contract to a third party - could conceivably feel like s/he's bearing the brunt of the burden (e.g. with each payment for public or professional liability insurance).
The buck would seem to stop at the consultant.
Is this the fairest of possible schemes?
Not quite. If I pay $200 for some program, it would be nice if the company I bought it from would stand behind it -- that is, make some promise that I'm actually going to get what I'm paying for, which is what a warrenty is supposed to do. If I'm using free software, I'm not paying for anything, so any functionality at all is a bonus.
I don't know if warrenties should be legally required -- though I would suggest not -- but what I am saying is that it's ludicrous to expect warrenties on free software.
-Erf C.
-Erf C.
Cthulu always calls collect...
Doesn't make a difference to me, she's still the one who spilled it.
Although you're jesting, I think you summed the whole situation up perfectly - software bugs are a problem, but when the source is available (and you're allowed to modify / rebuild it), the problem is much different. Should it really require a warranty then?
I/O Error G-17: Aborting Installation
So, is there a happy medium?
Sure. Require a warranty. But limit liability to some function of the price paid for the software/license.
Suppose that UCITA required that software writers be on the hook for up to three times the cost of their program.
Free software authors would be in the clear. Three times zero is zero, after all.
Shareware authors? What, the going rate for a good shareware program is $10 or $20? So, if they're on the hook for not more than $60, it's unlikely that anyone would go after them, if their programs misbehaved.
But payferware creators.... Well, let's put it this way: How much are Microsoft site licenses going for these days?
Wasn't she holding the coffee cup between her legs and driving at the same time?
No and no. Her son was driving, he pulled away from the window and stopped, she opened the coffee to put cream and sugar in and ended up needing skin grafts.
But the corporate media didn't bother to tell you any of that, since product liability lawsuits are just *so inconvenient* for their parent corporations.
--
There is no sin except stupidity -- Oscar Wilde
Hell, you can even include a warranty if you want. All you need is this disclaimer:
Buyer's sole and exclusive remedy for any breach of warranty is expressly limited to refund of the purchase price.
Take the letter, rewrite it in your own words (post it somewhere to have additional folks review it for spelling and grammatical syntax if you're not sure/don't trust your own writing) and send it in again. Especially to the representatives that are members of your political party. (I'm making the assumption that you're 18 or older - if younger, convince your parents to sign it as well.) Form letters are ignored - those can be done by the hundreds nowadays. Somewhat humble advice...
But shouldn't the beer company be sued for providing a product that prevented the driver from being in control of his actions. Sue, sue and sue again, what would be the word for being ruled by lawyers - sueocracy perhaps?
Fine, the warranty of my software: If this free software you downloaded doesn't work, you get a full refund or a replacement, your choice.
Still, your right about false application. A warrantee could be stretched to a guarantee without too much effort by the evil forces at work.
And if she didn't have a cup holder, why not just rest it in the passenger seat? If there was someone in the passenger seat, they could have held it in their hand. It's still a dumb and frivolous lawsuit from what I've heard, but I'm not overly sure of my facts anyway.
You are in a maze of twisty little relative jumps, all alike.
Well, it wouldn't be free then, would it? (Keep in mind that even if you include source code, it still isn't free by anyone's definition, don't try that ploy.)
I think it makes a lot of sense that free software shouldn't have warrenties but pay software should. When I'm using Linux, I have paid nothing to the people who developed the kernel, the people who developed the shell, the people of developed most of the programs! When I use Windows and the ~$200 OS crashes before the ~$500 office suite can save my work from the last three hours (which I of course should have been saving at regular intervals, as the OS/software isn't stable...), then it would be nice to have a recourse. What's the difference between that and free software? About $700.
You are in a maze of twisty little relative jumps, all alike.
>What happens if Joe random user uses Linux, loses data because of a kernel bug, and then sues Linus saying that he had used the software but never agreed to the GPL as is his right
;-)
I figure that term 5 of the GPL could be removed in the next revision without making ANYONE angry. And, if this law is rectroactive, then it would hurt a lot more people than just Linus. HELP HELP! MS-DOS drivespace busted all my files. I'm suing!
Just my 2 cents.
If you could be told what you can see or read, then it follows that you could be told what to say or think - BoC
If you pay $20K for a new car, you expect to get a working car. If it doesn't work, you have the right to repair, refund or replacement. It stems from the basic concept that your money should be exchanged for a good of similar worth.
by this logic, what's the problem providing warranty on $free software? you paid nothing for it, i'll be more than happy to refund you nothing if it fucks up.
OTOH, IANAL, unless warranty includes damages caused by said software fucking up. in which case NO software should come with a warranty, since some prat will sue for $30mil when they discover FDISK erased all their data. The legal system is fucked because people abused it, now the people have to suffer.
The text of UCITA is here . Check out "Part 4 - Warranties" for the legalese.
The doctrine of consideration long ago devolved to the point where a mere "pepper grain" is adequate consideration to support a contractual obligation. The idea is that the notion of "illusory" contracts (as well as other fundamental protections against unconscionable contracts) has displaced the need for consideration.
Once again, captain is either (a) unfunny, (b) misinterpreting the law, or (c) both.
...what does that tell us about ANAL?
Ever get the impression that your life would make a good sitcom?
Ever follow this to its logical conclusion: that your life is a sitcom?
"I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
They should change the UCITA so it doesn't apply to free software of any type even if its just free beer.
-Compenguin
These lo-lifes are yet again
attempting to distroy freedom of Speech
by forcing unscrupulous;y heavy
responsibilities on rhe Citizens.
Noone is going to challenge Bill
Gsates in Court on a warrenty but
plenty of industrial software houses
would love to ty up some programmers
in Court for GIVING away superior
software thar would empower the public.
This, even though the probability of
winning their case was legally nill.
The suggestion that the governments are
invading the net & creating phoney
laws placing the burden of law on decent
sharing people is appalling & casts
a shadow over the free sharing of ideas,
while having no effect on the thieves
who steal other people's ideas for gain.
It isn't so much the question of
the actual application of the law so much
as the implications & the chilling
possibility of a FALSELY applied useage
of the law.
The first application of the seat belt
law was against a guy getting a bl*w j*b
in his car.
^ ^ ^
Since Geo. Washington, the officers of
the Armed Forces have all been
Free Masons, which may be why
their Russian Brothers had our
troop movements before our men did
in Korea.
VA doctors have found neither
chemical or biological
justification for the Desert Storm
Syndrome. Perhaps our officers
are punishing our men for what
they did under orders. Done
with a MICROWAVE LASER.
So, do I have the right to decrypt my own DVD's?
You do, after all, have the basic right to use your own property.
[Emphasis in original.]
But there's the rub. According to UCITA, you don't buy the software, hence, it is not your property. What really happens is you enter into a license agreement: you give the developer money, and in return, they let you use the software in accordance with the terms of the license. If that license says, "You can't copy this program into RAM unless you agree to all the terms of this license," and you don't agree to the terms, then the license is revoked, and you lose permission to use the software.
Actually, two grammatical errors there, ol' Naz-
contract
Contract An agreement between persons.....
^ Why is this capitalized?
Contract law has its origins thousands of years(ago?)as the early civilizations.....
Tsk tsk tsk
-Not that I don't appreciate and enjoy your postings!
"Everyone is entitled to their own opinion, but not their own facts."
I don't know if this is moving a bit beyond the specific legal issues addressed in warantees. But, in general, should there be liability associated with distributing buggy code? Dow Corning won't sell you certain fiberglass resins if you let slip that you are going to use them for a homebuilt aircraft - all sorts of silly things come out of such liabilities.
Should there be degrees of negligence? And, as a practical matter, will the ability to afford lawyers factor into the determination of such.
Do you want a special exemption for free software? Free in what sense? 'IE free' or 'emacs free'? Java free?
This program (if you get to compile it) is provided with the following warranty:
The program foobar-0.42 (referred as "the free software") will do at least one of the following
+ Do what the documentation states (I promise I'll document it soon).
+ Get loaded by your OS
+ Produce a core dump
If the free software fails to meet any of these three goals, you'll get a full refund, equivalent to the cost of receiving the free software downloaded freely from my site.
I agree that UCITA does not mandate any new warranties, as long as you disclaim them (prominently). This is actually done to benefit consumers, although at the expense of small software developers who can't afford to hire lawyers to put on caps lock and disclaim all WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE blah blah blah.
The poster (to another thread) who mentioned that another good idea is to limit the remedy to the customer's money back, was on the right track, as limiting and disclaiming warranties in the fine print, especially express warranties (those warranties arising by the words or conduct of the merchant seller) is much more likely to draw fire as unconcionable than merely dictating the customers recourse should there be a breach.
There is a lot of confusion here, though, about the use of the terms contract and license. The way I see it, a license (in its pure form) gives you the limited right to use (copy, distribute, make derivitave works from, etc.) a particular piece of intellectual property. A contract is a promise which the law will enforce. I think that what we think of as a "license" is actually a contract in which you undertake certain obligations (to pay royalties, to pay for any breach of the license terms) in return for the license of the software. So in that vein, I think that the contract/license distinction is meaningless.
Except:
that the UCITA, by giving force to clickwrap agreements, (which are contracts of adhesion if I ever saw them) allows big software distributors the choice of whether to pursue you under a contract or copyright cause of action, such decision being most likely based on whether they want you to go to jail (some poor schmuck like you or me) or wring some moolah out of you (some company with bucks).
This is wrong. Either software is provided pursuant to a contract, in which case the publisher can limit things like redistribution and limited copying, and the cause of action it civil, or it is copywright material, which gets you in jail for piracy, but does not allow the limitation of redistribution or contractual limitations on "fair use".
So the short answer is, the warranty part of UCITA is not the danger, the danger is in giving copyright protections to contractual terms that are not negotiated, but rather presented as contracts of adhesion.
Where do you get *your* entropy?
Most people here seem to feel that an ISP is a common carrier (i.e. a medium that is open to all and, as such, it would be a ridiculous burden to expect carrier to police everything that every user might send over the network) and not a broadcast medium. The line is sometimes blurred by sufficiently popular web sites, but a common carrier for the general public is probably the use of the internet that is near and dear to most /.ers hearts. This interpretation is probably defensible under the law, as well. If, in fact, an ISP enjoys common carrier status, then the appropriate analogy is with the telephone and not with television, radio, magazines, billboards and newspapers. You don't prosecute or impose regulations on AT&T because of crank or obscene calls; you prosecute whoever made the call. That may superficially seem to make protecting children harder, but if you think trying to regulate a common carrier will work well enough to give parents a helping hand in protecting their children, maybe you should set your sights on AT&T and try to regulate them to prevent obscene phone calls.
FWIW, In real life I play a reasonably protective step-father. I don't think that sort of regulation would work well enough to help me at all; and it would open up all sorts of insane liability issues for ISPs that could shut quite a few of them down. The way I see it: the /. party line on this shows no hypocrisy, just common sense. Do you really think parents should have to lord over their children 24 hours a day to make sure they don't stumble across some disgusting man on man pornography and turn into sexual deviants or homosexuals? Would you like it if your parents had to do that with you?
Don't worry: there's more heterosexual porn out there turning innocent gay kids into rabid and deviant heterosexuals than the other way around. If you think it has such a strong influence maybe you should consider exposing more children to heterosexual porn just to be safe.
I think the deal is that software provided for free by the author should not present a financial liability - this isn't as important in the major-GPL-apps department as for the home-hobby applications. E.g. a shareware author getting bent over a barrel because his home-finances spreadsheet is being (mis)used by a small corporation and corrupts the payroll data. Stupid people will do stupid things with software, and screw themselves with it no matter how good the program is. Then they'll get mad and sue. Since the US courts enjoy busying themselves with frivolous suits, you can't imply a warranty and expect the courts to go your way in cases of total user negligence or malicious misuse.
Data East: "Leaders in Dot Matrix Technology" - Star Wars pinball
The grammar nazi can't take the blame this time. That part of my comment was 'cut-and-paste'. I'm aorry about that.
Keeping
It's nice that you point out any mistakes, Mr. AndrewD. I did reference where these definitions came from. With all due respect, I will continue to believe the law dictionary before I will believe some Podunk Slashdot poster named AndrewD. If you want some credibility, then please tell us where your definitions come from. To me, it sounds like you made them up.
For those that are interested, 'Podunk' is supposed to be capitalized. Look it up.
Keeping
I am truly sorry AndrewD. I read your reply and then reread my post and realize now that I shouldn't have said it like that. Often times I read something on Slashdot that gets a +5 informative and realize that it is slightly wrong or totally untrue. For a factual post, it's nice to read where the info comes from or the qualifications of the submitter. Since IANAL, I cut-and-pasted those definitions out of a law dictionary (my only source of law definitions). If your qualifications are true (and I believe you), then I'm sure that your definitions are much better. More importantly, your definitions are better suited for Slashdot readers.
I have a mathematics background and I'm used to everything having an exact strict definition. I realize, after thinking about your response, that law isn't the same way. In the future I will try to be more open minded when responding to people (unless they are British).
Just to save face, reference can be used as a transitive verb. I am guilty, in another post, for using GPLed. I'm sure I'll hear about it.
Keeping
... but the character of the solution proposed makes your IANAL somewhat redundant, I'm afraid.
The proposal you're making is for a body to offer an indemnity to authors of free software.
The trouble is that an indemnity doesn't affect the primary liability, so anyone dim enough to try and sue over the quality of free software (I've commented on this elsewhere and why it's almost certainly a fairly pointless proposition, financially if not legally and probably legally as well) is going to take a long hard look at the "straw man" that's undertaking to be responsible.
The minute it becomes apparent that this body is not worth powder and shot, they go off and sue the bearer of the primary liability.
I can assure you, if what you were proposing was possible, every corporation in the jurisdiction where it was allowed would be doing it. As it is, most corporate structures operate through a trading subsidiary which is so arranged as not to have any substantial assets, so that an incoming claim, if sufficiently disastrous, doesn't impact on the wealth of the corporate group entity too much. All they risk is their current trading assets that they can't license in from elsewhere in the group.
And even that is not perfect protection against a really determined creditor, but that's stuff from the Advanced Manual.
Essentially, this workaround doesn't work. If you want a body that offers indemnity against liability, you look in the book under "insurance companies", that being their main line of business. Alas, the thieving capitalist swine insist on being paid for assuming the liability...
-- AndrewD
A Maze of Twisty Little Laws, All Different.
By way of support for the foregoing: I'm not a US-qualified lawyer, but from the little I understand of the US regime:
Accordingly, an author of free software is going to have an easier time of disclaiming liability than, for example, Microsoft. Whether very large commercial software providers ought to be able to exclude such liability in whole or in part is, of course, a political question that I'm not going to digress on here.
-- AndrewD
A Maze of Twisty Little Laws, All Different.
OK, cut down from the dictionary version:
License: That's pretty much it. License is what lawyers say when they mean permission. Permission can be general ("go right ahead") or limited ("Well, you can, but don't do X, Y or Z"). It can be given gratuitously ("With our compliments, sir") or in contract ("You have permission provided you give or promise to give me X")
Warranty: In simpler terms, a promise that a thing is or will be so made in the context of a contract. In common parlance, that a product meets or will meet a particular standard. It's a word for a particular class of contractual term - there is a technical distinction between "warranty" and "condition", but even lawyers get sloppy about this.
Contract: A deal. That's all it really means. Where two (or more) people agree to affect legal relations between themselves, there's usually a contract. A piece of paper with small print on it and a signature at the bottom is not a contract: it's (very, very strong) evidence of what the people who signed it agreed. A simple exchange of promises or goods will do as a contract, provided both parties meant it.
Contract Law: I really could spend all day pointing out the goofs in that definition. Contract law is the law that says when the court will get involved in a contract: the rest is technical detail. One principle of english contract law is that there has to be consideration before the court will get involved. That is, if you made a promise to me, I have to show that I gave something in return before the court will order you to perform on your promise. There are, of course, other principles, but you can find those in any decent textbook on the subject. (I recommend either Atiyah's or Treitel's - Atiyah for the overview and Treitel for the technical detail).
The stuff about Roman Law is basically horseshit from start to finish. Consensus ad idem is a latin tag used in common-law courts as a (pompous) shorthand for "both parties meaning the same thing by this bargain and intending it to be a contract of a kind the law will intervene in" and is a modern (ie post 1000 AD) coinage.
"caveat emptor" is a latin proverb meaning "let the buyer beware", and it only appeared in a few Roman forms of contract. Roman contracts, you see, were governed by particular formalities rather than a general theory, and each had its own rules. (There was only one worth looking at in detail, sponditio, and the rest of it was elaborate forms of conveyancing since most Roman deals were done on spit and a handshake since - having a couple of million slaves to grow food and mine ore for them - they never invented the commodity future.)
-- AndrewD
A Maze of Twisty Little Laws, All Different.
Calm down there. As you say, you're not a lawyer. I am, and I was offering a correction to your non-expert suggestion. You've about as much cause to get angry as I would if an expert in C criticised a program I wrote as poor work.
The solution you're now offering is slightly amended, but it still doesn't help.
The real protection for an author of free software is the fact that he doesn't have a contract (unless he imposed license conditions, and possibly not even then) and is virtually impossible to sue in tort for technical legal reasons that I won't go into here.
Sticking an .org in between the author and the consumer doesn't achieve anything, any more than the use of a distributor and retailer does for the maker of any other defective product: the primary liability - taking your example - for Linux is with the person who made up the particular distribution at issue, as you say.
The source code written by Torvalds and co. can't do any harm by itself - it's the executable version made up by the distributor that does the damage, if any. (Maybe, but I doubt it, the distributor could go back and have a pop at the author of a piece of faulty source that introduced a fault in the kernel, but the responsibility of one expert coder to another is at best limited since experts are supposed to be able to look after themselves)
With a piece of freeware where there is a clearly identifiable author, the person responsible for its quality is that author in the first instance. If someone else - say your hypothetical .org - takes additional responsibility by publishing it, then that adds another potential defendant. It doesn't get you around the fact that the author was liable to start with.
What you really want is this:
Now that would work, requires no central .org, requires about three minutes of effort on the part of the author (once he's got good wording in place) and covers you if someone gets their copy other than from the .org. UCITA and indeed the general law allow you to exclude liability: trying to pass the buck to some third party won't do it.
-- AndrewD
A Maze of Twisty Little Laws, All Different.
I had hoped to avoid getting down to this level of technical detail in this thread, but here goes:
The test for liability, at UK law (US law is *probably* very similar, but check before relying, m'kay?) is whether, but for the allegedly wrongful act the harmful consequences would not have occurred.
If the answer on the evidence before the court is that it wouldn't have, then you've proven a causative link between the act and the harm and the person who did the act is one step nearer being found liable (the other steps needn't concern us here).
In your example, the claimant would have to show which of the individuals named wrote the shonky bit of code, and furthermore that without that change to the code his hard disk would still have partitions and a FAT on it (for example).
The task is, essentially, more or less impossible as a practical paying proposition (even without your introduction of one or more completely anonymous contributors).
This sort of thing - and quite a lot of OSS and Free software is like your example - is why I keep saying that writing/contributing to free software is fairly safe - any litigation against you would be a fairly poor proposition from the Claimant's point of view.
-- AndrewD
A Maze of Twisty Little Laws, All Different.
Unnecessarily touchy, I feel.
Yes, I made those definitions up, just as the compiler of the law dictionary you referred to did. I made them up based on:
You can rely on the dictionary if you want: that's your prerogative. I would, however, recommend that you didn't, if only because the pressure of space imposed by the composition of a dictionary definition necessarily degrades the signal somewhat. I haven't looked this up, but I believe infallibility isn't even a done deal for the Pope, let alone someone with a book contract and a deadline to meet. As I mentioned in my original post, both Atiyah and Treitel on Contract are very, very good reference works.
What I offered was a set of working definitions, translated out of legalese. I also pointed up some of the errors the compiler of the dictionary fell into. If that wasn't sufficiently clear to you from the header and other things I wrote, I do most sincerely apologise.
In return for which, I'd be grateful if you'd let me know what Podunk means!
[cheek]And if you're calling yourself "grammar nazi" you really need to stop verbing your nouns. "Referenced"? What's wrong with "referred to"?[/cheek]
-- AndrewD
A Maze of Twisty Little Laws, All Different.
Copy M$ EULA? And have their *lawyers* do you for copyright violation as well?
The remainder of your points are insightful stuff, but I don't have any moderation points about my person at the moment. Hint.
-- AndrewD
A Maze of Twisty Little Laws, All Different.
OK, I admit to being pissed off with slashdotters. As usual, it's apparent that 90% of the respondees to this article (including, of course, the ones who protest about tyrannical Big Government) haven't bothered to read even the small section of the UCITA that deals with the warranty topic. To give you a small taste, here's a useful extract [406(3), if I recall correctly]: ========= (3) Language in a record is sufficient to disclaim all implied warranties if it individually disclaims each implied warranty or, except for the warranty in Section 401, if it is conspicuous and states "Except for express warranties stated in this contract, if any, this `information' `computer program' is provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user", or words of similar import. =========== In other words, the "onerous burden" imposed upon a software writer distributing a free program is nothing more than clearly stating in a single sentence, that this software isn't warranteed to do anything whatsoever. I'm not a legal expert, and if I've missed something important, please point it out. But on actually reading these sections of the UCITA, they seem pretty reasonable. They mean, among other things, that if I purchase a Microsoft OS that crashes 4 times an hour because its a shoddy product, then I can demand compensation of some sort because Microsoft made an implied warrantee of usability when selling the product. Unfortunately, I'm sure MS will include an escape clause as per the previous text, but at least the notion that software that you pay for should actually work, is there. This is nothing more than a software equivalent of the "lemon laws" that apply to most/many used-car transactions. If I ask a dealer if a car is in good condition and he says yes (or at least doesn't say that he doesn't know), and then half an hour after I drive it off the lot I find the transmission has been packed with sawdust... well, damn right I should be able to demand a refund! Now, I wonder how many of you other posters have actually read the relevant sections of the UCITA? Slashdot was a much more useful place when it started and ideology didn't substitute for intelligence. kmm
Writing software is hard enough. Having to write software on someone else's foundation (hardware, OS) is harder. Having to do it for free is even harder still. And... now they want a warranty? Hmm... kiss open-source good-bye if this goes through. What morons think of these things? Sigh. It's only Tuesday, too. They must be still recovering from a bad hangover. Hey, I think we need to provide a warranty on the sun, since it can hurt my eyes if I stare right at it. Help! (*boggle*)
Didn't know about the act. How insightful. =) I guess the individuals can keep on releasing software without any promises. Good.
As for the warranty, I'm sure the software firms will figure out a way to include their 'patches' as part of their warranty program. Of course, promises are promises... until the company goes belly-flop...
I'm really curious to see how this turns out..
If the law exempts alpha and beta software then there should be no problem. There can be no warranties on beta software since it is in "development" and If you feel the software project has come to the point of stability then you can release it as a final product and sell the warranty. That's what would make sence to me since it most closely follows the open source money model -- software that's free (beer and speech) with support that's paid for (now with a warranty!)
A woman drove her bicycle past several signs in a National Park that said ``No Bicycles!'' ``Hikers Only'' etc. When she drove off the trail and hurt herself she sued because the signs said that it was illegal to drive the bike, not dangerous.
-- Erich
Slashdot reader since 1997
Free software works on the premise that the author loses nothing by allowing more people to access their software, i.e., possession of software is non-exclusive. If there's a warranty then it does cost the author to distribute the software, because each user is a potential liability.
--
I suspect that the loading of software into RAM is a "space shifting", just as emulation is. You don't need to be licensed to do this; you have a right to do it based on the fact that you legally obtained a copy of the software. You do, after all, have the basic right to use your own property.
There is legitimate reason for concern.
Thanks
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
Thanks
Bruce
P.S. I hope this posting comes out OK. My posting screen has "This box will be back once mu.current.nu is back to normal" all over it.
Bruce Perens.
Thanks
Bruce
Bruce Perens.
Although it's commendable that Bruce Perens and others are interested in the interaction between free/open-source software and the commercial and/or legal systems, we shouldn't infer from this that the relationship is stronger than it really is.
The success of free/open-source software is not dependent on its large-scale (or even small-scale) adoption by the commercial sector. The community is a totally independent organism with its own positive-feedback growth mechanisms, and at its most commercially-affected, all it does is take specifications from the commercial sector as additional input, occasionally. It certainly doesn't need to do so to survive and grow, and it certainly doesn't need the sanction of the courts for us to continue to use free software and contribute to its growth.
ESR was right to say that the commercial world would do well to adopt open-source practice, but that doesn't mean that there is a reciprocal dependency. In many respects, commercial interest just creates inertia which limits the natural growth potential of free software, in part for no other reason than that it tends to create big products which are then not easily built upon by the rest of the community. It's the pure RMSian meaning of "success" that gives the community its massive potential, a continuous cycle of enhance-or-reuse and redistribute without limit, and the commercial and legal worlds are simply not a part of it unless they drop the strings that they would otherwise attach to everything they release or try to control.
The short answer to the article then is, it doesn't really matter as far as the success of free/open-source software is concerned, even in the extremely unlikely event (as others have pointed out) that all court rulings go utterly against the GPL.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
To remove the last vestiges of doubt, he should include in his source, any executable he releases and any licence he releases with either of these, a statement to the effect that he can't be responsible for the effects of using the program on a system he knows nothing about. He should go on to say that anyone who wants to be sure that the program will be safe to use should take and rely on advice from an appropriate professional, and if they don't, it's their own look-out. (Take advice from a lawyer local to you about the exact wording to use).
Why not just copy M$' EULA? It's pretty much what they say..
I still say, given a solid enough wording, that OSS could really win from UCITA, particularly since acquiring new software would become activity requiring strict legal and fiduciary scrutiny instead of slapping junk in you just bought from J&R computer world down the block. UCITA will require software planning, something many commercial organizations don't engage in, and when you've been given (thanks to UCITA and legitimate legal/financial hesitation due to the strength of the licensing terms) some breathing room to DESIGN a solution, OSS gets a bigger chance. Then when you see OSS licenses are explicitly free and unencumbering (except for redistribution of source code), it becomes the path of least resistance..
Hmm...
Your Working Boy,
Methinks you hit the nail on the head right there. The rest is well-thought-out, too. And the closing remark thanking them for the opportunity to comment is a good example of politeness that goes a long way to making sure your comments are considered. In short, your apology for it being "far from perfect" is unnecessary.
Christopher A. Bohn
cb
Oooh! What does this button do!?
The public performance issue I raised earlier I still have questions about (though Karsten outlined a possible solution) but your explanation of the warranty issue sounds valid to me.
The key is not in the wording of the GPL, but rather in carefully following the instructions for how to apply the GPL to your program.
Cheers,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
A lot of proprietary software cannot be legally run at all.
:-)
Hey...
IANAL but I would strongly doubt that your interpretation would stand up. After all you are supposed to use common sense. Actually running a program would probably be covered by something like fair use.
Cheers,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
Sure. Require a warranty. But limit liability to some function of the price paid for the software/license.
Interesting idea. Unfortunately most copies of Windows (and many of Office, etc.) come bundled with computers at no additional cost to the purchaser. Microsoft could (and probably would) argue that the consumer had paid $0 for the product and hence had no warranty. The PC manufacturer might be entitiled to $30 worth of warrenty (1 support call?), but the actualy buyer might be entitled to nothing.
Suppose that UCITA required that software writers be on the hook for up to three times the cost of their program.
There are enough other things wrong with UCITA to disqualify it from being a good idea, even if a reasonable compromise on warranties could be reached, and IMHO it is impossible to do so, as any disclaimer negates it anyway. Such a law is designed to prey upon the unwary: it adds no requirement to corporations with savvy legal departments, but victimizes joe schmoe who gives something away for free without knowing the law, and hence without properly disclaiming a warranty.
The Future of Human Evolution: Autonomy
At any rate, you *can* buy Windows, Office, etc. off the shelf, so getting a retail price for the purposes of such a plan is hardly impossible.
True. My point wasn't that it would be impossible, but rather that for the vast majority of consumers nothing substantial would have changed.
Furthermore, as others have noted, there is a gaping loophole in the warranty provision that would allow Microsoft (and, to be fair, the Free Software Foundation) to disclaim all warranties, which is precisely what they would do.
The result? Another law on the books, another potential legal landmine for the unwary and niave, and absolutely no change in the status quo.
As I said, such laws offer nothing, yet prey upon the unwary. In this case, both the unwary consumer who thinks they have a warranty, but more to the point, the unwary, generous soul who gives away a piece of software (perhaps into the public domain with no license and no warranty disclaimer) and suddenly finds themself up to their neck in liability.
In short, given that everyone from Microsoft down to Joe Schmoe has the option to disclaim all warranty under the proposed legislation (and I don't think this is necessarilly a bad thing), what is the point of passing the provision at all?
The Future of Human Evolution: Autonomy
I wonder how much this would slow down the software industry. Rather than get a product out to market ASAP, they would need to now make sure that all the bugs were out of it. I know at a company that I worked for we had lots of known bugs that were not fixed and the underlying API that we used had bugs in it that we could not get fixed.
How would one enforce waranties(sp) on free software? Or would this be a case where all software would have to come with a file describing the warrenty(sp) on the software. Even with a warrenty(sp) what would the software have to be required of doing? Never crashing?
send flames > /dev/null
Only 'flamers' flame!
How exactly would these rulings apply to the free software itself?
I can see a company like RedHat marketing the service/support of their free distribution; it's the service and/or support contract you make with RedHat that would be waranteed.
Free software is kind of like free water. If you get it out of the tap or a bottle, it's the packaged product that's being marketed and sold, and waranteed to be free of contamination (just look at the e-coli problem we've been having here in Ontario). If you choose to dig a hole in the ground, soak up puddles with a sponge, or collect rain-water in smoggy downtown-Toronto, you're free to do so.
We are all responsible for the quality of the water, probably tap the same water table in the ground, but my well on my property is my responsibility to monitor, and the utility company is answerable to government regulatory bodies.
Free software is the same (IMHO). It's all the same general body of code, however if I want to maintain/compile my own system I'm free to do so. If I don't want the hassle, or live in a community/corporation environment then it's something I can contract out to a company like RedHat. RedHat is the one accountable to warrantees. If the code isn't up to snuff, it's up to them to either fix the code (equivalent to cleaning up the environment), or wrap it in their own proprietary solution (the post-processing, water-treatment plant).
--The more you know, the less you know.
The accompanying software is guaranteed to operate in exact accordance with the source code provided, under condition that it is compiled using an error-free compiler and executed on error-free hardware.
What about undefined constructs in the language?
;-)
dragonhawk@iname.microsoft.com
I do not like Microsoft. Remove them from my email address.
Erm, freeware != open source.
I can find you plenty of freeware software where no source is available. Freeware usually means that the author asserts their copyright but does not charge users in any way, shape or form.
Greg
(Inside a nuclear plant)
Aaaarrrggh! Run! The canary has mutated!
that really doesn't seem to hurt free software there.
(but then, you also can not sue someone for a million because they didn't tell you that the coffee was hot, so maybe free software in the US will be harmed)
greetings, eMBee.
--
Gnu is Not Unix / Linux Is Not UniX
In fact, I am an attorney. One who has been practicing primarily computer law for the past ten years. I just finished a term as chairman of the Florida Bar Computer law committee. I am intimately familiar with the bill, and have been frequently amazed at some of the things people who are political opponents of its provisions will say. The bill has real, legitimate problems -- this is not one of them.
Now, this is not a reason to take me at my word on this point, or to accept the unsupported conclusions I laid out above. I am simply pointing out that neither is the "I have a lawyer-friend downtown" remark a reason for the same.
If you think that UCITA imposes a warranty that cannot be disclaimed, one that would not be likewise imposed by the common law or the UCC, by all means, please identify it, and I will address your point.
Thus far, all we have in this colloquy (both sides) is non-falsifiable blather. If you or your friend wish to support this proposition, please do so.
Let me say at the outset that I am likewise unfond of some of these warranties. But that doesn't alter the fact that the posted statement:
is just bull. As with the UCC and the common law, all implied warranties can be disclaimed in a record, indeed with the very language of most current licenses. The words "AS-IS" get rid of most of the warranties, and the rest (suitability for a particular purpose and title and infringement and the like) can be fixed with certain magic language prescribed by the Act. Just like the UCC. Nothing new here. The siren rang by the poster isn't the truth.
Don't take my word for it. Read for yourself. Section 406 of the UCITA expressly provides:
This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors.
Nonsense. This is more pabulum and disinformation designed to stir up dissent among the ill-informed. I commend to all my colleagues the text of the bill -- read the darned thing (including the commentary) and then decide for yourself.
Express warranties need not be given, and implied warranties can (almost always*) be disclaimed. You can easily give a BSD-style license under UCITA. If anything, the situation under UCITA would be slightly better: you will have somewhat greater assurance that warranty disclaimers are enforceable.
There are a few pieces of the common law, UCC (which would apply in the absence of UCITA) and UCITA that cannot be disclaimed as a matter of law. In this regard, UCITA is not substantively different from the status quo.
Comment removed based on user account deletion
If you buy commercial software it's a clear cut. The bearer is whoever gets your money.
Now, if you buy Red Hat Linux x.y, the entity that gets your money is Red Hat, Inc. So one may have luck suing them. Indeed, if you decide to sue someone because your Microsoft software is faulty, that "someone" is likely to be Microsoft, not individual developers(s) that produced faulty code.
If you download that same piece of software from freefsckingdownloadsofthefsckingday.org, it's not clear at all why Torvalds/Cox/whoever would suddenly become bearers of primary liability. It looks like the operator of the aforementioned .org will bear liability in this case, as it's not really different from Red Hat.
And said operator is, by the way, a $50/year nonprofit.
This "solution" does not work for people that get real money in exchange for their wares (either directly or through a subsidiary or maybe through the Satan himself), because the buck must stop somewhere. If there's no buck, there's no place to stop either.
I propose a solution for independent developers who want to release free software without risking lawsuits, not for the people who're in the business of free software. I didn't state it in the very beginning, so I'm a dumbfsck, Ok?
--
Industrial space for lease in Flatlandia.
- Suppose I write a piece of free software and upload it to some
.org FTP server. Suppose, for the sake of argument, I forget to disclaim liability in my license. - Somebody else fixes 2 killer bugs and 14 minor ones, introducing 6 more in the process.
- Yet somebody else adds two new features (and some new bugs to go with them).
- Somebody from Microsoft needs this software to do his job. He downloads it, finds a minor bug, fixes it, introduces another one, doesn't put his name anywhere, and uploads the new version (and logs at the
.org remember it was uploaded from a Microsoft computer). - Yet somebody else rewrites everything from C to C++, leaving all existing bugs intact and of course introducing some more.
- Finally, someone else submits a one-line fix that allows the whole thing to be compiled with an ancient version of g++ on some piece of obscure hardware.
Again, for the sake of argument, suppose that up-to-date binaries for x86 Linux and Windows 9x are generated automatically by saidNow the only logical conclusion that I'm able to make is that everyone involved is equally liable. Which, frankly, doesn't make any sense whatsoever to me. Probably laws just don't obey the rules of logic.
--
Industrial space for lease in Flatlandia.
It seems to me that he's saying the reverse: commercial software should be warrantied, but free software should be exempt, for who knows what reason (but particularly, I suspect, because he writes free software). But UCITA will require warranties, unless disclaimed through a license? At least that's what I gather from the article text and the discussion on technocrat.net, although I couldn't find anything on this matter from scanning through the UCITA. Perhaps someone can post a reference.
Firstly free software as I understand it refers to freedom, and not price. Free software might very well be sold by their authors. What then? No free software sold commercially that I know of fails to disclaim warranties. Supppose that you package up software that you wrote with a manual, and sell it with support. Are you then willing to warrant your software? (note that support is not the same as a warranty)
Even supposing that we are refering to software given for free. Well a lot of commercial software is sold for very little profit, zero economic profit in fact. I'm thinking of shareware here, where the price of the software is just enough for the developer to make a livelihood. Requiring a warranty increases the potential cost of developing the software dramatically, and will have an especially chilling effect on small software developers. I don't think this is desirable.
I'd be happy to exchange warranty protection for money. That's what most proprietary software publishers do as part of charging for their software.
What proprietary software are you refering to that comes with a warranty?
Anyone who wants a warranty can contract with LinuxCare or their local consultant to provide one, and pay for the privilege.
I didn't know that LinuxCare warrantied free software. I thought they provided support, which is distinct from providing a warranty. Will they replace, refund or fix my free software in a timely manner if it fails to perform as advertised?
. When I write free software, I don't provide a warranty, that is only fair.
Rhetoric. Why is that any fairer than a commercial software developer disclaiming warranty? Simply because it's free? What if I sell free software I wrote?
Free software developers dislike providing a warranty for precisely the same reasons commercial software developers dislike providing warranties: the potential cost, given the complexity of software. What if I'm a small shareware developer, and the need provide a warranty has the potential to destroy my livelihood?
I've been thinking... is it really a bad thing to require that a license not disclaim warranties totally? I know it's harsh on free software authors, as they often do not have the means to pay damages or get legal support in the case that trouble arises.
However, OTOH you have these lame software producers who write crappy code and disclaim everything, but they happen to be the sole supporters of something you need. What if they bugged their code and exploited you, but their license terms are sufficiently broad to give them a way to weasel out when you sue them? I can see why people are pushing for laws like this to be passed...
So here's the idea: why not the FSF start a fund of some sort, or something similar, to support free software authors? Or if it's not feasible for the FSF to do this, maybe some other organization. This way, you can have both licenses that people can depend on, that don't disclaim just about everything, and you also don't bog down free software developers who can't afford to support a license with a warranty.
---
mikre he sophia he tou Mikrosophou.
This is a good thing. Warranties on software need to be more like warranties on, say, cars. Offering a full warranty, as defined by Magnusson-Moss, (free repair or replacement of defective parts; refund or replacement for goods if cannot be repaired in a reasonable time) is great for consumers, and not too hard on software manufacturers. Manufacturers can still disclaim consequential damages ("the software ate my file system"), but have to deal with complaints promptly and offer refunds. And the warranty period can be limited, as in "Full 3-year warranty". So you have to send out replacement disks and refunds now and then. Big deal. You also have to respond to complaints within specified time limits. Again, big deal.
I have a background piece on this which answers in detail most of the usual objections to software warranties. It was written regarding the Microsoft antitrust case, but the background info is still valid. Knowledgeable comments would be appreciated. Thanks.
At least, thats what Microsoft did.
Should work for other people too, right?
I want to delete my account but Slashdot doesn't allow it.
Also, is there any site out there that specializes in de-lawyerizing legislation texts? I know it's important for the court system to have airtight laws, but legalize is considered, IMHO, to be harmful to ones health.
Marxism is the opiate of dumbasses
The Magnuson-Moss Act explicitly allows manufacturers not to include a warranty. IANAL but I think the act stands on top of UCITA. So should be able to say, sorry no warranty. For someone selling software, the sorry no warranty could be a disaster if you could buy software with a written warranty from someone else. Sort of what happens with car warranties, you look at the car, the sticker and the warranty (well if you don't have cash to burn) and many times the warranty tells you which is a better product. Will you buy a car with a six month limited warranty?
Be very, very careful what you put into that head, because you will never, ever get it out. - Cardinal Wolsey
A reminder - please, please, please post this article regularly between now at the 11th of September.
Also, are the comments sent in now 'official' with the digital signatures act? Would sending in now be a legal petition?
JHK
CASCAP, Inc.
For several years I ran a firm that produced and sold industrial software with the following, money-back warranty -- and we were never asked for a refund. It is possible to write good software.
"Wester' Shore Technologies Ltd. warrants, for a period of 12 months from the date of delivery, that all computer programmes supplied by it as part of the 'Tool Kit' work in accordance with the intended functions as described in detail in the User's Manual. Should any purchaser demonstrate that the programmes do not perform as specified, Wester' Shore Technologies Ltd. will make the necessary programming changes within a reasonable time and at its own expense so that conformity to the User's Manual is achieved. This is offered to ensure customer satisfaction. If, for any reason this is not feasible, the customer may, at his option, return the software package in its entirety, and all copies thereof, to Wester' Shore Technologies Ltd. in exchange for a full refund of all monies paid towards the software license."
Morris Schneiderman
Bill - aka taniwha
--
Leave others their otherness. -- Aratak
This is a common misconception. But you don't have to agree to anyone's license to use software - not even MS's. Actually managing to use it may be tricky however.
-- 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.
Someone else gave a link to the text of UCITA.
Looking at that, section 406 (c) makes it utterly clear that a claim of "as is" or something similar to that (eg what the GPL does) is sufficient to disclaim all warranties except that of section 401. Section 401 only applies to information, not programs. (ie Software is in the clear, geographica databases are not.) And that can be disclaimed with words to the effect of, "There is no warranty against interference with your enjoyment of the information or against infringement."
Cheers,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
Here is the license and from a previous discussion, some of my analysis.
However when it comes to warranties, I am somewhat concerned. Term 5 explicitly says that you can use the software without accepting the license. Terms 11 and 12 are the disclaimer. What happens if Joe random user uses Linux, loses data because of a kernel bug, and then sues Linus saying that he had used the software but never agreed to the GPL as is his right (see term 5) and therefore had never accepted that Linus is not liable for any loss of data and business on his part!
What next?
Regards,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
Not quite sure what this means because certainly, there are no details worth talking about yet.
But instead of the status quo ("This software might do anything, and it's not our fault"), I can just see companies changing this to "This software might do anything, but, if used correctly, it'll do this"). Perfectly open, perfectly truthful, yet completely useless anyway.
Then, when Scandisk destroys your partitions (It's actually happened to me, somehow, no idea why) Microsoft will just stand up and say "well, the user obviously wasn't using the software correctly".
I see little change. It's legal mumbo jumbo.
--Remove SPAM from my address to mail me
Isn't it rather obvious?
If you pay $20K for a new car, you expect to get a working car. If it doesn't work, you have the right to repair, refund or replacement. It stems from the basic concept that your money should be exchanged for a good of similar worth.
If, on the other hand, I give you a car, you have no right to expect anything from it. It could break down in a mile for all you know, and there's nothing you can do about it short of giving it back or rejecting the gift from the start.
Anything gratis is a gift. Gifts are never warranted. (If they were, who would give toys to kids? ;-))
Argh! Whatever you think you know about the McDonald's "coffee" suit, it's wrong. It's been discussed before repeatedly on both Slashdot and elsewhere, so I'm not going to repeat it yet again here.
However, if you really want to believe that Rush Limbaugh and the like are the only ones with the guts (no pun intended) to report the "real" story - without all of the distracting "trivia" that the rest of us insist is important (like the fact that this coffee was served something like 20F hotter than at any other restaurant in town, or that the manager ignored multiple prior credible scalding compliants), then there's nothing I can do.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
Create a non-profit organization or two (or two hundred, for that matter) which will assume all legal responsibility for (some part of) free-{speech,beer} software. Such an organization will have a yearly budget of about, oh, $50.00 (I feel generous today). So some Joe Schmoe decides to sue such an organization, and it wents belly up. Who fscking cares? Another one will be created tomorrow.
If I were an American, I would do it today. But I'm not, so I leave this task to you.
One small personal request: if you do create such an organization, please name it FUNT. I can't make up a phrase that FUNT would stand for, so please do it yourself if you feel like it. May seem strange to you, but don't worry, it makes a perfect sense.
--
Industrial space for lease in Flatlandia.
Free Software must have warranty. And Commercial can get away with a shrink-wrap license? How the fuck does that work?
The message on the other side of this sig is false.
It seems to me that the IP laws are being designed these days to DISCOURAGE people from making their IP freely availible to the public. UCITA is a perfect example of this. Everyone knows that the average free software coder can't afford to give warranties for his/her software.
Another issue is that our government is getting ridiculous with its favoritism. It seeks to stifle one form of creation, coding, to protect another, dvd movies. The natural conclusion of such a mindset is to punish book authors because reading takes away time that could be spent consuming audio/visual media (rather than printed media).
It has been of course quite easy (and rightfully so) to be cynical towards modern representative democracy. Special interests control every aspect of the process of getting the leaders that we want or don't want into power. The media powers for all intents and purposes silence the 3rd parties by not allowing them to enter into televised presidential debates, big corporations control the funding of the political parties who are themselves the ultimate special interest group. Until we remove these kinds of road blocks the kind of IP reform we want will not be possible and things like UCITA will popup as often as new cases of AIDS in many of the unfortunate african nations.
Definitions for the IANALs.
license
A special permission to do something on, or with, somebody else's property which, were it not for the license, could be legally prevented or give rise to legal action in tort or trespass. A common example is allowing a person to walk across your lawn which, if it were not for the license, would constitute trespass. Licenses are revocable at will (unless supported by a contract) and, as such, differs from an easement (the latter conveying a legal interest in the land). Licenses which are not based on a contract and which are fully revocable are called "simple" or "bare" licenses. A common example is the shopping mall to which access by the public is on the basis of an implied license.
warranty
A guarantee given on the performance of a product or the doing of a certain thing. For example, many consumer products come with warranties under which the manufacturer will repair or replace any product that fails during the warranty period; the commitment to repair or replace being the "warranty".
contract
Contract An agreement between persons which obliges each party to do or not to do a certain thing. Technically, a valid contract requires an offer and an acceptance of that offer, and, in common law countries, consideration.
contract law
Contract law That body of law which regulates the enforcement of contracts. Contract law has its origins thousands of years as the early civilizations began to trade with each other, a legal system was created to support and to facilitate that trade. The English and French developed similar contract law systems, both referring extensively to old Roman contract law principles such as consensus ad idem or caveat emptor. There are some minor differences on points of detail such as the English law requirement that every contract contain consideration. More and more states are changing their laws to eliminate consideration as a prerequisite to a valid contract thus contributing to the uniformity of law. Contract law is the basis of all commercial dealings from buying a bus ticket to trading on the stock market.
Source: Duhaimes Law Dictionary.
Keeping
Actually, it's not yet known whether the GPL will legally be considered a contract, a copyright license, or both. This was discussed in the article linked from a recent Slashdot story.
:-)
So, the GPL may be affected by UCITA. Of course, the GPL disclaims warranties, so it's in the clear in that respect.
Still, the death of free software would almost be worthwhile if it meant Microsoft had to comply with strict software warranty laws.
This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors. It's of interest for proprietary software users because the warranties attached to software that you pay for are generally considered inadequate.
i.e. Giving warranties is a good thing, except when I have to do it.
UCITA will not give rise to new warranty obligations. Much confusion is created by the word "license." UCITA is contract law, and when it refers to a license, it means a contract. OTOH, the GPL* is a different type of license - a copyright license. The mere act of person A writing and releasing a piece of open-source software, and person B using that software, does not form a contract. Therefore neither A nor B is subject to the provisions of UCITA. Even if somehow A was found to be covered by UCITA, section 406 expressly permits the disclaimer of warranties. The GPL* includes such a disclaimer, so A is off the hook. *Note: this also applies to other popular open-source licenses like the BSD, X, and Artistic licenses.
-------------------- Hmmm... what does this button d
This is far from "perfect," but it's the best I could manage.
------------
1. Personal Background--I am the Internal Systems Administrator for a small internet company in Austin, TX. Our business both consumes and produces software, so I am very familiar with the issues at hand. In many instances, I have to evaluate software for purchase so warranty regulation is a concern for me in the workplace. Additionally, I use a computer at home and software reliability is a concern there as well.
2. In the interest of intellectual honesty, I should disclose that I believe the notion of "intellectual property" is patently absurd (pun intended). However, as current law is based on said notion, this response will address the issue as given. Eben Moglen, attorney for the Free Software Foundation, http://fsf.org, and Professor of Law and Legal History at Columbia Law School, has written an excellent paper on this very subject at http://emoglen.law.columbia.edu/my_pubs/anarchism. html.
3. Occupationally and personally, I am very involved with Free Software. Typically, licenses for such software disclaims warranties of any sort as the authors usually give the software away including human-readable source code (e.g., http://www.fsf.org/copyleft/gpl.html). The authors of such software often have neither the legal expertise nor the financial backing to warranty their software. Rather, they give the source code itself away as a replacement for a warranty. The source code gives the consumer the ability to examine for herself whether a given program is reliable and well-engineered. If the consumer is not capable of reading source code, or is simply too busy to do so, she has several options available. Many Free Software projects have homepages, mailing-lists, and large numbers of current users. It is not difficult to find information on the reliability of the software, even if forced to email the original author (which is sometimes the case if the project is a niche project of interest to only a few people).
4. Additionally, many companies offer "support" (telephone help-desk support, specially tested packages of Free Software, security auditing, custom software development, etc.) for Free Software (e.g., http://www.redhat.com, http://www.linuxcare.com, etc.), even though the software itself is not warranted. This suggests that the companies are confident enough in Free Software such that they may reap profits from unused support.
5. It could be argued that these companies would want the software to be shoddy so that more consumers would pay for support. However, this view ignores the fact that support companies are more like insurance companies: they are there when you need them. Legality aside, it is not in the best interest of a medical insurance company to pay ruffians to maim their customers in order to drive up demand as the payout for each claim is significantly higher than the loss of demand for medical insurance. Similarly, it is significantly cheaper for a support company to pool its resources into providing good software in the first place rather than providing costly telephone or emergency source code-level support.
6. While it still might seem that Free Software is more likely to need warranting against ill-effects than proprietary software, one need only witness why many Free Software projects arise in the first place. Often, a proprietary product that fills a particular niche is unstable, less than featureful, or generally not well-supported. An industrious coder will want to "scratch that itch," so to speak, and starts a project to create a free alternative. The Linux kernel, http://linux.org, SAMBA, http://samba.org, and many other Free Software projects are good examples of this. Linus Torvalds was unhappy with the sad shape of consumer operating systems available for his lowly 386 and set out to create an alternative kernel to run on the tools created by the GNU project, http://gnu.org. SAMBA exists due to users unwilling to run an unstable operating system or pay insane amounts in licensing fees simply to serve files to others still using legacy proprietary systems.
7. In essence, Free Software exists in part due to market failure. Instead of wooing customers with good products and good service, many proprietary software sought to lock consumers into their products and intentionally implanted incompatibilities to force customers to upgrade or be left behind, less able to effectively communicate with their partners who were licensed newer versions. Unwilling to sacrifice money or features to these ingrates, coders like Torvalds opted to create their own software and license it in such a way that it couldn't be coopted by unfaithful companies. Although Linux did not come along until 1991, the aforementioned GNU project was founded by Richard Stallman in the Eighties to combat the same sorts of tactics used by the old Unix vendors before the advent of the near ubiquitous consumer desktop.
8. Consequently, it is only because of negligent proprietary software vendors that laws requiring software to be warranted appear necessary. Not surprisingly, they are the same people pushing bills like UCITA which require nominal warranties on software as they are betting they can have Free Software effectively outlawed. In exchange for their granting of nominal warranties to consumers, they demand draconian rights such as legal remote removal of so-called "pirated" software. If this sort of government-corporate collusion is allowed to pass, then I am moving myself and my tax dollars elsewhere.
9. Lastly, many Free Software projects are collaborations involving individuals in many different countries. It would seem the height of folly to require them to follow stringent legal requirements, such as those detailed in UCITA, for distributing their products in the USA. As foreign coders cannot be expected to understand the vagaries of English legalese, they would have to hire a US-based attorney to review the warranty on their product. One can imagine the likelihood of that given the cost of such attorneys. It would be a shame to lose foreign contributors as, unlike in many physical object trade disputes which affect trade deficits and surpluses, software cum source code increases the intellectual wealth in all countries involved.
10. I would like to thank the FTC for allowing citizens to comment in such a convenient format as email. Hopefully, all such government agencies will one day be able to gather direct feedback from the citizenry so easily.
--
Stephen Waters
Austin, TX
Help cure AIDS, cancer, and more. Donate your unused computer time to worldcommunitygrid.org. Join Team Slashdot!
My preferred warranty:
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
Slashdotters really must learn that, to make things better, they should take time out of their day and put pen to paper and write to their elected officials.
Hell, it doesn't even take a full-blown letter campaign, just the thoughts of a few concerned citizens. You must realize that for every letter you write, you counter the efforts of a corporation plus some (you are not only a concerned individual, you are also a constituant and a voter).
If the corp. decides to bring out the big gun lobbyists and big $$$ contributions, that weakens you but you should use the opporitunity to bring in your friends and associates and fight harder.
Have you ever put your name on one of those internet petitions? I have. But in reality, if I was a Senator or the cabinet I would put as much weight on two or three written letters from my constituents as I would on a net petition, even if it was signed by 500 or 5000 and printed out on HP laser jets and sent FedEx. The letter really has that much more weight.
Its time for the bitching and rhetoric on these /. boards to stop. Specifically, the "Why don't things change?" bit. The energy can be much better spent influencing the people that matter, rather than convincing our own brethren of the obvious truths and blatant injustices we see more and more often in the /. news these days.
So, write the FCC, write to your elected legislators to change the laws, and have a nice day.
1. Be polite. The last thing we need is for representatives' mailboxes to overflow with hundreds of YOU SUCK FOR VOTING FOR UCITA!!! messages.
2. Speling counts (pun intended). We want to present the impression of responsible, concerned people who are worried about how this law may affect them. a bunch of peoplz riting like this wil get no responses. We don't want to make the impression that the opposition consists only of crackers and 14-year-olds.
3. Almost without a doubt, someone will post an example letter showing the correct way of showing your opposition. Use this, but don't copy it word for word. Hundreds of identical letters will inevitably be dismissed as a campaign. Be unique and your voice will count.
4. State the facts. Using plain english, explain why this bill is bad. No technical terms, no hyperbole, and no distortion of the facts. We have enough evidence that there is no need to make something up, and the negative results from that could be devastating.
5. And again, be polite. I've said it once before but I'm saying it again, in order to get it thoroughly drilled into people's heads. I cannot stress this enough.
Friends don't let friends misuse the subjunctive.