Can Programmers Become Legally Liable for Their Code?

owillis asks: "Reading this Salon article on file sharing programmers who are suspending or ending work on their projects due to the legal climate post-Napster, I wonder what the liabilty is for people who work on open source software. Does open source protect the creators from these laws or is it fair game?" We've discussed this before but it would be interesting to note if your opinions have changed after the Napster ruling. However it bothers me that in today's legal climate, it is easier to blame the creator of the tool rather than the users who use them illegally.

Comments

Won't see this happen

[Rob Kaper]

While the legal system is not perfect when it is about software, this doesn't seem like something that could happen.

Every software license I know of, either open-source or proprietary, waivers liability. Big companies such as AOL/* and Microsoft will not be accepting liability ever, so they will make sure there is a way to prevent this from happening.

And whatever way they find to keep the ability to dismiss claims, this way can also be used by open-source. AFAIK it is not possible yet to buy/bribe yourself an exception clause to the law. And if that wold be possible, then it's time for a new Constitution.

Short answer: YES.

[rjh]

First, it's unlikely that Free Software will ever be found liable in court, due to the conspicuous disclaimers of warranty and liability which can be found with every Free Software license.

That's not the same thing as protection, though.

Remember that contracts are subservient to the civil and criminal law. It is not possible to construct a contract which violates the civil law; if such a contract exists, then the portions of it which violate civil law are null and void.

So let's say, for sake of argument, some state has a law on the books which says "for all software used in avionics, the manufacturer must provide a warranty". This is a plausible law; avionics is a life-and-death software situation, and it's entirely within the rights of a state to specify that life-and-death software be held to a higher standard.

Now let's say that an aerospace company wants to build an airplane, and decides to use a GNU tool as part of the software package. The engineering staff sees that there's a disclaimer of warranty, and sends a letter to the Free Software Foundation saying "hey, I'd like to use this software in our new plane, would you mind terribly if we did?"

Suppose the FSF says "sure, go ahead"--in writing, of course. The FSF thinks that the terms of the GPL apply; the engineer thinks that the terms of the state apply, and by giving the go-ahead, the FSF has acquiesced to this.

Now suppose that plane crashes, and lawsuits are filed. Suddenly there's a big lawsuit filed against the FSF; the aerospace company claims "we talked to them and we have this letter here permitting us to use their software; that overrides the GPL which they *thought* they were releasing it to us under, and that means the FSF *must* provide a warranty for this software".

The FSF says "But wait! This is a Washington state court, and we're from Massachussets. We weren't aware of Washington's required-warranty law, and had we been aware of it, we wouldn't have told them to go ahead--we told them `sure, go ahead', meaning under the terms of the GPL, with no warranty involved!"

Eventually, the case would go to the jury. The jury would come back with a decision, and it might not be favorable to the FSF.

This is just one hypothetical situation. There are many more you can construct. No matter what, though, it all winds up the same: in a civil trial, everything's irrelevant once the jury gets seated. If the jury is dead-set on saying that you're liable, then by God you're going to be liable whether or not you disclaimed everything.

The very short version:

Don't spend your time worrying about whether or not you can be held liable--you can. Spend your time making your software high enough quality that nobody will ever want to sue you for making a shoddy product.

Possible answers at UK law.

[AndrewD]

Depends what you mean by "liable".

Criminally liable? Possibly. We have laws against cracking in this country, and any coding you do to that end could make you liable to a conspiracy or aiding and abetting charge. Possibly. I don't do any criminal law, and haven't in over ten years, so I can't be sure on this one.

Not entirely seriously, there are a number of offences you can commit by communicating with others in the UK:

1. Where you incite dissaffection between different classes of UK citizens, you commit sedition. So stirring up Mac users to assault slaves of the Borg would be covered by that (incidentally, this is what incitement to racial hatred used to get proscuted as before the tories made up a new offence and cut the penalty to two years' jail).
2. If your code mocks christ, it's blasphemous, and a criminal offence
3. If it depraves and corrupts the user, it's obscene and liable to seizure and destruction.
4. ...er
5. ... no doubt there're more, but these are all I can remember right now.

Civilly liable? I doubt it, frankly. The only successful case we've seen so involved some other thing being done by the guilty party: Napster offered the pirates' trading service. They aren't being made liable for their code.

DeCSS is an odd case. That DMCA business is a real kicker: it makes the tool, and distribution of the tool, illegal contrary to what I understand to be (and what the judge now appears to understand to be) the proper interpretation of the First Amendment. In theory at least, that should come out all right, but chickens should remain uncounted for a while yet.

The other oddity is Crypto. There are a lot of places around the world where you can get in serious, serious trouble for even thinking about the stuff.