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Free Software at Risk Under Lemon law

Posted by ryuzaki0 on from the officialism-and-its-discontents dept.

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."

4 of 301 comments (clear)

  1. Interesting comment - not by me by oPless · · Score: 5, Interesting

    huge difference (#13146)
    by Anonymous Reader on 2002.05.11 13:21

    I am not a lawyer (thankfully), but I do know that if I pay for something, and it fails, I am entitled to compensation. If it fails from negligence or designed error, then there can be punitive damages. But let's examine the case of a Linux/BSD web server, running Apache, MySQL, and PostNuke.

    To be safe, I download for free a non-commercial Linux such as Debian, or FreeBSD. I might be mistaken, but both are developed by groups of people, and anyone is allowed entry if they are competent enough coders. But a group is not a company. The whole corporation/private/public/IPO thing. I acquire, freely and legally, a copy of their work. They might have benefactors and patrons, but that isn't the same as employers.

    So I download Apache, MySQL, and PostNuke. All fall under the same category. Maybe MySQL doesn't, then just replace MySQL/PostNuke with Perl/DBI.

    So now a huge bug develops, a hole so large, it had to be coded in Redmond. I lose all my data, my competitors get my secrets, and I'm on unemployment line next to Enron execs. Who do I have to blame?

    Let's see, someone or some people worked on a project that was supposed to do some particular task. They made it freely available, source and all, so that others might work on it as well. They made no claims about it's security, stability, etc. Others may have, but they did not misrepresent the software in any way.

    I did not contribute, but I saw an opportunity to use their work. So I did. They received nothing from me, not money, not anything. And, the whole time, the company kept no secrets about the product, and in fact, by making the source available, does just the opposite.

    There was no intent to decieve, nor any misrepresentation. By not purchasing the product nor any sort of service contract, I entered into no agreement with the group.

    Going in, I understand the risks. I assume the responsibility if problems occur. This is 180 degrees different from microsoft, since they make plenty of claims, and since there is a legal agreement between a company and microsoft, and because they are marketing a product with known liabilities.

    No, free/open source software doesn't stand to be shut down, rather it stands to gain tremendously. The problem is for companies like RedHat which sell and service open source software. So, form the commercial standpoint, it hurts linux companies who don't have billions to spend on lawyers, like er um, microsoft. But it doesn;t hurt open source software.

    rob mandel
    ^^^----- Posted anonymously here

  2. Americans should remember how they destroyed ... by Tim+Ward · · Score: 4, Interesting

    ... their lightplane industry before inventing any new product liability laws.

    It got so that anyone who flew whilst drunk and crashed a plane that he hadn't maintained for years could sue the manufacturer for many millions with a fair chance of winning. And even if the manufacturer won their legal costs would wipe out the profit on many aircraft. So basically the US lightplane industry closed down. (It has since started up again, as a shadow of its former self, following some law changes.)

    OK, that didn't affect all that many people. Closing down the software industry would be a different game altogether.

  3. Limit liability to multiple of software price by nniillss · · Score: 5, Interesting

    Why couldn't one limit the maximum liability to, say, 10 times the license / distribution price? So a typical private MS customer might claim some thousand dollars while a company or school (with a single contract covering thousands of machines) could start multi-million dollar lawsuits. Obviously, the risk for authors of free software is then still zero. For linux distributors, the liability might be limited to the non-free software parts (like yast in SuSE) and to the editing process (identification of alpha/beta/production grade software). In any case, big money will only be at stake for companies which make big money.

  4. He's right... Here is a different solution. by Error27 · · Score: 5, Interesting
    This was one of the complaints that people had about UCITA. It made software distributed over the net more liable while traditional software companies were not held liable because the shrink wrap license nullified all responsability.

    I think any liability laws would unfairly punish smaller companies.

    Some people are in favour of Lemon Laws specifically because they dislike Microsoft and think that Microsoft software is insecure. This is stupid and shortsighted.

    Deal with Microsoft's monopoly abuses seperately. Monopolies come and go but bad legislation is forever.

    Create laws that arm consumers with security information. Perhaps a grading scheme where software that doesn't connect to the internet is given a A rating. If it is a client then it gets a B rating. If it is a server it starts at C then for every three exploits within the last year the rating increments by one.

    After you have informed the consumer you can let the market decide. If they still use software with a G rating then that's their own problem.