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Free Software at Risk Under Lemon law
mpawlo writes: "Newsforge published a piece I wrote on a lemon law for software. That is - what would happen if shrinkwrap limitation of liability clauses would be banned? I think Microsoft and the GNU Project would both suffer."
I love this little quip:
"We all know that the open and distributed model for development described in Eric S. Raymond's book "The Cathedral and the Bazaar" is much better and creates more reliable products than any closed non-distributed development model. "
I'm wondering if the author can substantiate this claim with facts.
This is the primary problem with Open Source advocacy, it relies a lot upon blind faith.
The legislation would skyrocket production costs for Microsoft if the company were forced to release foolproof products.
Why would this happen? Car manufacturers used the same "skyrocket production costs" argument with the lemon law with cars. But it just doesn't mean that everything needs to be perfect. Instead it just ensures some basic quality control such as practiced in Japan.
As for free software, it would just mean that some of the legal entities that support a packaged product (i.e., Red Hat) would be held to the same standards. IANAL, but if the FSF says 'this isn't a complete product' they can't be held liable any more than a tire company could be for some idiot putting the wrong tire on their car.
...is that Microsoft spends a lot on marketing to tell you that their stuff will streamline your business, keep your toilet from clogging, and whiten your teeth while you sleep.
Meanwhile, their EULA practically says that you're better off playing Russian Roulette with five bullets and only one empty chamber, than to trust their software in a mission/enterprise-critical environment. We can't get access to their source code to check it for bugs ourselves, which would shift liability to us if we could do so, did, and then okayed it for use-- we just have to take them at their word, and hope that the server farm doesn't melt down and bankrupt our company.
Free software, on the other hand, is just 'out there'-- it's like finding a still-wrapped condom on the street. Sure, you can pick it up and use it, but if bad things happen, well, how is that anyone's fault but your own?
Liability-eliminating EULAs are an affront to any kind of truth-in-advertising regulations. A software company should definitely be able to be held financially liable for losses caused by failings in its products-- not to a degree that would instantly put them out of business, but a fair amount. Say, equal to their annual marketing/advertising budget?
Let's look at it with the car company analogy. Suppose Ford's commercials said that the airbags in their cars would save you and your family's lives? Okay, now suppose someone dear to you was killed in a head-on collision while driving a Ford. How would you feel if, when you tried to sue, Ford said, "But wait, your loved one agreed to the EULA by deploying the airbag... let me read you this paragraph from it that says, if the airbag does not work as we said it would, we aren't liable."
I think publishing the source should allow the disclaimers to be in force. MS does publish the source to some customers, and GNU to everybody. With the source you can (in principle) verify the functionality and absence of backdoors, and you can (in real life) fix problems yourself instead of having to wait for a Service Pack or other official upgrade.
This is pretty much the key. All that is needed to get OSS off the hook is the line in the documentation "This product does exactly the source code says it does. All other documentation is purely opinion."
What would Lemmy do?