Hype Vaporware, Go To Jail?

Tim Dierks writes "The New York Times (registration required) has an article describing a federal case against executives in Enron's broadband data division, based upon the charge that Enron claimed that a software platform was more complete and more functional than it actually was. It seems to be that if this case holds up, most of the software industry is guilty. Would the world be better off or not if it was illegal to overpromote the functionality or features of software?"

Comments

Duke

[GhostChe]

Guess Duke Nukem Forever is really screwed...

Re:Duke

[Schnapple]

Well the critical difference, I think, in what will be considered "criminal" in the Vaporware world is whether or not there's money involved. It's one thing to put on a smoke and mirrors show in order to get more investors money - and then not spend that money on what was claimed to be invested in. In this case it's either that the above had happened, or the developers really were doing what they said they were with the investment money, and they have the bad luck of being at Enron at this point in time.

Regarding DNF, it's being funded out of 3D Realms' pocket at this point in time (following comments by George on Shacknews), so no one is being bilked out of anything.

Besides, Battlecruiser 3000AD was Vaporware for like eight years, so as you can see there's worse things than never being released.

Re:Duke

[DickBreath]

I think, in what will be considered "criminal" in the Vaporware world is whether or not there's money involved. It's one thing to put on a smoke and mirrors show in order to get more investors money - and then not spend that money on what was claimed to be invested in.

Investors? Investors?

Why is investors money more important than Customer's money? In fact, screw the investors. If customers' money is stolen through vaporware, then the investors are not the ones who are wronged the most. The customers were screwed. If this adversely affects the value of the company, then the investors have a different cause of action due to the bad management that did a criminal wrong and resulting in harm to investors.

Re:Duke

[blibbleblobble]

"Besides, Battlecruiser 3000AD was Vaporware for like eight years"?

What's wrong with that? 997 years early...

Re:Duke

[Exedore]

Well, for one thing, in the case of DNF, no customer money is involved because no product has been released or sold yet.

In my opinion saying "This software is gonna be Teh Best EVAR," spending your own money to develop it, and then failing miserably might make you look stupid (Hi, John Romero!), but it's not a crime. Hyping a potential product to investors and using the money to line the pockets of company officials may be another matter altogether.

Re:Duke

[digitalunity]

No. Currently, the Federal Trade Commission allows "Puffery". A slight exaggeration of a things greatness. Or speed. Or value. An example would be video cards. How can everyone advertise they build the fastest cards? They all do. They are faster than everyone elses, at one particular mode or function. This is where driver fixing for benchmarks comes into play. It allows them to make claims that aren't fully truth, or fully lying.

Another example of puffery that goes too far: weight loss pills. The FTC recently persued over 30 diet pill manufacturers for making entirely false claims. Have you seen in a magazine, the advert where there are side-by-side pictures of before and after using a product. The FTC realized that these before and after shots were really airbrushed, processed, computerized, or somehow otherwise altered. In many cases, the before and after shots didn't even have the same people; the head of a fit person was grafted onto the body of an obese person. This is blatant false advertising.
There is a difference between false advertising and puffery. False advertising is when claims made are false in entirety. Microsoft does have functional security; it is just far more lax and insecure than they admit.

Re:Duke

[Spectre]

I find it amusing that you abbreviated "Duke Nukem Forever" as DNF ... when that is a common race abbreviation for "Did Not Finish" ...

Re:Duke

[Schnapple]

And in the specific case of a computer or video game, there's little chance of the consumer being ripped off, since there's systems in place like reviews, Internet commentary, demos, etc. If you're still concerned, buy from some place like GameStop that has a lenient take-back policy.

Consumers didn't get hurt one bit by Daikatana taking four years too long, but Eidos took a $30M hit. Worse, the reviews, word of mouth and demo ensured that to this day the game sits in $5 dust bins.

However, convincing people to buy into a streaming video technology which really consists of a VCR in a PC case (not in this instance but in another I've heard of) is a vaporware scam.

I think people are confusing frustration at sliding ship dates with an actual crime.

Re:Duke

[plague3106]

What about a company saying 'don't buy our competitors product, b/c ours will have xyz when its released in a few months'?

Re:Duke

[CAIMLAS]

And in the specific case of a computer or video game, there's little chance of the consumer being ripped off, since there's systems in place like reviews, Internet commentary, demos, etc

What about reviewers that are paid off? What about 'studies' done about software feasability that have been paid off? (There seems to be a certain company I recall that used this tactic fairly prolificly in the past (present?)) These things hit many a person in the wallet, especially involving games.

Would software reviewers that fraudulently boister the quality of a game get the same legal treatment, I wonder?

Re:Duke

[MrTangent]

If this is true, this is the end of Microsoft.

Re:Duke

[SurgeonGeneral]

False advertising is when claims made are false in entirety. Microsoft does have functional security; it is just far more lax and insecure than they admit.

Heres the thing: I dont recall Microsoft making any concrete claims about its security whatsoever. Microsoft does not sell Windows XP on the basis that it will make your computer safe from hackers, and even if they did, there is neither an adequate benchmark to compare it to, nor an accepted standard of the word "safe" (or "hacker") that courts can admit. Not saying that your security is better or worse than another security system is most certaintly not fraud, let alone hyperbole (what you call "puffery"). Its not a matter of allowing it, so much as not being able to prosecute it because of logical arguments to the contrary. Now consider if Microsoft marketed Windows XP on the claim "There is no way for any person to gain unauthorized access to this software" ..... they would clearly be prosectued.

Vaporware is Critical

[emo boy]

I think vaporware is critical on all levels in many different arenas. Not only for consumers but for developers as well. If companies aren't able to throw out plans and ideas then innovation is stifled. For consumers this give people a great place to see what is coming soon and to learn to expect more from technology companies thus pushing more and more creativity in the industry.

Re:Vaporware is Critical

[butane_bob2003]

True, true. I can't abide by blatent lies though, it needs to be made known that 'features are in development', instead of promising things that might not ever solidify.

Re:Vaporware is Critical

[DarkBlackFox]

There is a differance between corporate vaporware and media vaporware.

Corporate vaporware is when a company not only announces, but blatently promises to deliver a product, and never does. This is bad not only for the company's reputation, but for the industry and consumers, who prepare for and anticipate those "promised" products. However, it's the companies own fault for hyping something and not delivering.

Media vaporware is differant. This is when a company floats a concept for potential software around, and somehow the media gets ahold of it. Suddenly, X company is working on Y product that will "revolutionize the modern computing experience," despite it's entire existance on a cocktail napkin thrown out of an executive session. This is dangerous for obvious reasons- now the companies reputation is in the hands of a third party, unbeknownst to them. Rumors start that a product is under development. Company denies product exists. Media reports company is scrapping project, even though it never existed. In this case, the company can not be held responsible for anything, since it's strictly the media which hypes, regardless of what the company says.

Both are bad for the industry and the consumer, but the latter is worse, since it's out of the control of the company.

Re:Vaporware is Critical

[faxafloi]

If companies aren't able to throw out plans and ideas...

There's a difference between throwing out an idea for something and claiming you did something when you didn't. Looks like Enron was doing the latter.

Does the world need more "legal fraud"

[ShatteredDream]

If you really have to ask yourselves that you have an issue with real morality.....

Re:Does the world need more "legal fraud"

[bmongar]

Hmm, to me it would depend on what the statement is like. For example a statement like "We are planning a word processor that can improve your sex life" and then the magical sex life improving feature gets cut is ok. But "We have a word processor that can improve your sex life" is a lie. I realize improving your sex life is an insane feature it is just an example.
As a developer I see features get cut because of feasability/time/customers weren't impressed with the feature in the vaporware announcements. So I think it is important to be allowed to talk about features you don't have.

Definition of Vaporware?

[TWX]

If release dates are touted and pushed and touted and pushed, would that constitute vaporware? I know of one company in particular that was guilty of that severely until August 24, 1995...

Re:Definition of Vaporware?

[Tim Macinta]

There used to be an excellent description of vaporware and why it is so damaging on Caldera's (aka, SCO's) website. It was also very damning of Microsoft and it seemed to have dropped off the net in 2001 (draw your own conclusions on how related those two points are to each other and to the the recent "licensing" done by Microsoft of "SCO's" Unix rights). Thankfully, you can still grab a copy from the Wayback Machine. The write-up is still good even if Caldera isn't.

Note: the link points to an old copy of drdos.com. Dr-Dos was recently sold to some other company, but the vaporware paper was taken down long before that.

Let's all go to jail then

[The Bungi]

Everyone is guilty of hyping unreleased stuff. From commercial software companies like IBM, Microsoft and Sun to open source projects. Virtually no one is innocent if doing that type of thing, if only to keep interest alive.

In this case I suspect the govt' is just trying to further stick it to Enron and set an example.

Re:Let's all go to jail then

[DickBreath]

Everyone is guilty of hyping unreleased stuff.

Well, I guess that makes it all okay then.

I hear this argument "Everyone in business would do what Microsoft has done" from a Microsoft shill coworker. My argument is always "Does that make it okay?"


Everyone in politics is corrupt. So it must be okay.

All of the copyright holders are persecuting search engine dude because his code could potentially tell you where to get mp3's. So it must be okay.

(From the 70's, that's ninteen-seventies, last century...) Everyone litters. So it must be okay.

All businesses would rather just dump their pollution into the river due to cost effectiveness. So it must be okay.

So it is that case that as long as it is in the name of profit, that it is okay to do wrong? No matter what? If everyone else would also do it for profit, then it must be okay? Why don't we just get rid of many laws then?

Oh no!

[teamhasnoi]

I guess the new level in Duke Nukem Forever will be the 'Licence Plate Factory'.

Legislating truthful business practices

[Locmar]

I don't know if this specific case is the right or wrong way to go about it, but there are a great many American companies that desperately need to have the fear of law put into them.

Sure!

[Anonymous Coward]

Why shouldn't intentionally overstated "pre-announcements" intended to lure customers--especially to lure customers away from a competing product--be illegal? I'm thinking more long the lines of FTC-level deceptive trade practices sanctions here, rather than outright convictions for fraud.

How about we apply the same logic to overstated legal claims, too? Especially those designed to spread FUD about a particular product, hmm?

Future Predicitons?

[richjoyce]

IDNRTA, but is this applying to future predictions that don't hold true (ie. Duke Nukem Forever will exist sometime)? It seems Enron claimed that something existed at the time they said it, which didn't hold true. Surely companies should be able to state that their product will be at point b in production by date x, (whether they truly believe it or not) and then have it at only point a when date x rolls around.

Well...

[Da_Biz]

I'd be curious to see, specifically, what the "functionality" the case is talking about. I was the lead QA engineer for a time on the Broadband Streaming Media platform.

The organization had a LOT of sharp engineers. Unfortunately, the management was completely incompetent and didn't allow many of the better engineers to have a say in functional requirements/technical specifications.

There was also a disturbingly bad attitude that pervaded the works at EBS as well. Case in point: during one meeting, I made the point that the service level metrics they were using were horribly vague. I didn't believe we should do business like that (goodwill is, I think, an important concept in business), but their response was "oh, if they'res a problem, we'll just sick our lawyers on them." Assholes.

Closed Source vs Open Source answer

[Anonymous Coward]

I suspect that an answer common to comments here will surface once again;

Closed Source projects would be mostly 'at risk', as they can claim to do anything without simple review by the user/the masses to make sure of this.

Open Source, however.. the client has the code, and can determine for themselves, or have determined by others, that the program will or will not live up to any claims.

In other words - yet another instance where Open Source would be exempt from common practice based on the premise that if somebody has the code then they have the means to verify, bugfix, adjust and invetigate claims themselves.

Times said it's very hard to prove

[Phronesis]

The Times article suggested that the vaporware point would be very hard to prove. It is pitched as the weak link in the case, not as a groundbreaking strategy.

Also, just for reference, even if the prosecution succeeds, it just means that you can't lie to shareholders about vaporware. There's still nothing wrong with sowing FUD against competitors by making vaporware claims in your advertising so long as you keep them out of your stock prospectus and annual report.

Re:Times said it's very hard to prove

[femto113]

I think it's worth noting that the indictment makes clear that Enron's fraud was stating the software was in use on their own network, which is an important distinction from just saying it exists and has such and such functionality. It's much like showing off a revolutionary new car that doesn't need an engine, but really you've just hidden an engine in the trunk. Here's a relevant excerpt (edited for brevity, see page 4 for full text).

On April 19, 1999, defendants [...] issued [a press release announcing] that the Enron Intelligent Network was tested, "lit," or operational, and ready to deliver [streaming media]. The press release stated that a software control layer powered by InterAgent was embedded on Enron's network [...] The press release stated that the InterAgent sofware provied built-in "intelligence" that allowed Enron to route data efficiently and reliably [...] All of these clams were false and misleading. Among other false claims, only a small part of the network was lit, the [streaming media product was] not functional, and the claimed network control software [InterAgent] did not exist.

No big deal

[ENOENT]

It's just the executives who go to jail. That's one of the risks that go along with the insane salaries, bonuses, interest free loans that get forgiven when they become inconvient, stock options, etc.

Of course, if there were any real justice, every person in every marketing department everywhere would be forced to use nothing but vaporware to create their copy...

Great Idea! Let the courts decide

[Anonymous Coward]

I fear the day a judge decides if a feature is implemented. Even if the decision is about "a reasonable person would conclude," we'd have yet another set of SCO lawsuits. Just what the world needs.

Look out (forever)!

[BrynM]

3DRealms is in serious trouble if this goes through, but I doubt a judge would hear the case of millions of bummed out gamers wishing for Duke Nukem.

It's interesting to see the possibility of a company called on vaporware though. Large companies get screwed all the time by sales people over-inflating the features of new versions forenterprise level software that they are shoehorned into buying in order to keep support of previous versions. Business is hurt by these tactics so much more than consumers, but it has become a (laughable) standard practice.

Now if only we could find a way to punish software that did get released and just plain sucks (Microsoft Bob anyone?).

Only a commercial software problem..

[Archwyrm]

I think we can attribute this same kind of advertising to what you would see on TV in the middle of the night. "It slices! It dices! It feeds your pets!" This is the kind of marketing that everyone has grown used to. While in the computing industry there are numerous sites which review software products, the ability to download demos or trials, and then you can avoid the whole problem by using OSS..

"Buyer Beware"

Rampant

[BWJones]

based upon the charge that Enron claimed that a software platform was more complete and more functional than it actually was.

Boy, this sort of behavior is rampant among companies small and large. I have known several small software companies whose sales divisions were always making promises that were not grounded in reality. Promised functionality that had simply been discussed, but was not actually in code at the time. I'd say to the sales managers, "what the hell are you doing?" to which they would reply, "making sales".

That was hugely dissapointing for me as I would much prefer a product based sales strategy where something is not announced until it is ready as opposed to a timeline driven or sales driven paradigm where products tend to be pre-announced and then released half-assed.

Re:Rampant

[st0rmshad0w]

"Promised functionality that had simply been discussed, but was not actually in code at the time. I'd say to the sales managers, "what the hell are you doing?" to which they would reply, "making sales"."

And someone on the other end of the equasion was blindly believing the sales droid. Honestly this whole thing runs fairly parallel to buying a used car. The weasel in the bad suit is going to tell you anything he can to part you from your cash and you had better get the merchandise checked out before you commit to anything. So why are the management types who agree to these purchases green-light them so easily, without checking the product out. This is what CONTRACTS are for. If they want to make you promises, make them write it down. If you want to complain later if you didn't get it in writing, whose fault is that?

Re:Rampant

[Arandir]

At my company we are not allowed to talk about our projects to anyone in marketing. Our internal websites are password protected to prevent marketing finding out what we're working on. In fact, development has its own "marketing" people internally so we can make reasonable marketplace decisions without marketing knowing about it.

Only a matter of time

[marcsiry]

Law is notoriously slow to catch up to technology. It was years after the first car showed up that someone had the bright idea to install traffic lights, or impose a speed limit. More recently, file trading took the RIAA completely by surprise-- it was many months before they even acknoledged the problem, let alone started to take legal action.

In the case of damaging actions which are currently part of accepted business practices, I think we'll start to see the law come around. I'm particularly interested in when the first major lawsuit against Microsoft will appear for lost business due to mass internet slowdowns from Outlook virus propogation.

I just clicked over from MacMinute, where they reported the BugBear virus had slowed the .Mac service... not from vulnerabilities, but from sheer load on the infrastructure. All it takes is for some pissed off, Mac-using litigator to realize that negligence on the part of Microsoft is damaging a public utility, and we're off...

Vaporware isn't just an idea sometimes

[ShatteredDream]

I agree that tossing out ideas must remain legal, but there are different types of vaporware. I for one see no reasons why it should be legal to imply that you have a reasonable capability to deliver something when you know that you probably don't. That is called initiating fraud in libertarian terms. If I tell you I can build a house for you and all I know how to build is a basic shed, but I'm in the process of learning how to build a nice house, don't you think that's not merely tossing out an idea but rather fraud?

Weekly Staff Meetings

[dfn5]

I do this all the time in my weekly staff meetings.

Boss: How is that <insert latest project here> coming?
Me: Oh, I'm almost done
My Brain: Mental note. Start that damn project

Good - Let 'em burn!

[D4rkSt4lker]

Good! I'm sick and tired of buying software that is NOT up to par as the advertisements claim to me.

For example, if I were to buy a car that was advertised at getting 80 MPG, I'd
*EXPECT* 80 MPG!

What is even worse than that is, you can't take the software product back!! (Or at least I have NOT found a store around here that'll take the product back)

Re:Well...

[Anonymous Coward]

Microsoft does not sell vapourware.

All their new innovations have already been developed by someone else.

Makes sense...

[jabbadabbadoo]

...now that Enron itself turned out to be a vaporfirm.

As a developer:

[Vengeance]

I think it would be great. It's the marketing clods and PHBs who oversell capabilities, product, and deliverable dates.

Let's not even get started on Microsoft's legal status under such a regime.

Nice in theory.

[tjrw]

Sadly, in practice, all I foresee out of that is lots of lawyers stirring up trouble and making lots more money, and very little improvement for the end-user.

Let's face it, part of the reason we have so much shoddy software about is because we, the end-users, encourage the behaviour (yes, I'm a Brit), by buying from whoever is first to market, rather than waiting for someone to release a quality debugged product. So, the people who cut corners are often rewarded and those who try to do "the right thing(TM)" are punished.

Hey.. Honesty is the best policy...

[jbuilder]

Look at the history of the softare industry and you'll see that honesty is the best policy.

Case in point -- Phillipe Kahn decided to "open the kimono" a bit and show off Paradox for Windows 18 months before it was ready to ship. Stock values went through the roof and people thought it was going to come out practially at any moment. Especially when he said it would be shipping in six months (18 months later it finally *did* ship).

If they'd only known at the time just how rehearsed all of that was. When they realized Paradox for Windows *wasn't* going to ship any time soon, stock values dropped sharply and Borland was investigated to see if any wrongdoing had occured. Fortunately what had been decided was that Borland's board of the time was just stupid in showing a product too soon. R&D knew it wasn't ready, but overzealous management thought that R&D was just being too cautions. Next time, listen to those who are being honest with you. Don't listen to just what you want to hear...

Today Borland (and many other software companies) all have the same policy; "We'll show it to you when it's ready. When will it be ready? When it is, that's when."

Personally I think *every* software vendor should be honest in the cost and timeline of something. And the same holds true for other vendors as well. Look at King County, Washington and the now demolished King Dome. They took the lowest bid on the dome from a company that simply couldn't deliver based on the the timeline and cost to contruct the dome. The result - Seattlites for *years* had to content with something that was dark, dismal, looked like a garbage can, and is still *being paid for today* even tho it's been demolished and replaced. If they had gone with an *honest* vendor and an *honest* price, who knows - it might still be standing today....

Now should you, as a software vendor, be held civially or criminally liable when you are less than honest about what you can deliver and when? No. I think you should be punished accordingly - your business should go elsewhere and you should simply cease to exist when your customers disappear. That's what's happened in the past and it's been effective. Many of the companies that couldn't deliver on their promises have gone. Or they *learned* (as in the case of Borland) and have gone on to thrive.

There is a difference...

[raehl]

Between saying you expect to release a product with certain features on a given date and not making it, and saying that you have a product that has certain features right now when you don't.

A release date is a plan. Plans change. A statement that you have something you don't is a lie.

Already illegal

[Junks Jerzey]

This is already illegal for publicly traded companies. Just look at any press release and you'll see all the required legal disclaimers about "forward looking" information and all that. But you can still get into trouble by misleading shareholders.

A Very Bad Thing (tm)

[Jonsey]

Just remember folks, Diakatana was VaopurWare for quite a while. Be careful what you wish for.

Yes! Absolutely!

[alchemist68]

Would the world be better off or not if it was illegal to overpromote the functionality or features of software?"

The world would be a much better (happier users) and safer (less security risks). The Borg would lose its monopoly if people really knew how badly engineered Microsoft software is put together. I'm not trying to be a troll, but everyone here on Slashdot knows that M$, for a while, was coming out with weekly security updates for Internet Explorer and Internet Information Server. Even the US government hinted that M$ better get its act together and repair its flawed products after 9/11, saying that our information infrastructure was at risk to attacks. Apple seems to do a better job of weeding out the bugs before the public en mass downloads any updates to Mac OS X. And Apple is certainly much faster at fixing known bugs in its software. Look at how fast it was in clearing up the iTunes internet sharing flaw - one week to get the update out, only to be thwarted again by the UNIX heads playing around with port numbers, etc... At least the music is "protected" from sharing not "in the know".

Re:But what will they call it?

[Cruel Angel]

So would it be against the law to sell Microsoft Works?

Vaporware used to find demand

[pcraven]

I worked with a product manager who thought it was a cool idea to release an announcement that we were taking preorders for Product X. If there were enough preorders, we'd make the product. Otherwise the product wasn't worth the business.

Free market research. But that company is all but out of business now.

Hmmm...

[M.C. Hampster]

Would the world be better off or not if it was illegal to overpromote the functionality or features of software?

Only if it's illegal to say that drinking a certain type of beer is going to get you more women.

In the UK, you're apparently not allowed to market

[Sean80]

Amazingly, I discovered the other day that, in the UK, you're not allowed to specifically say that your product is better than some other company's. Instead, you apparently just have to go on about how great your own product is. Now if that doesn't take the heart and soul out of marketing, then I don't know what does.

I suppose you have to break down the argument into what a product -does- and what benefits it will give you. Perhaps lying about the actual features of a product is bad, but it seems a much more difficult problem to sort out who's lying about what the benefits of the existing features are. What beer isn't supposed to make you a sex god? Which software product isn't going to save you millions of dollars? Which car ad is going to tell you in big, bold letters on the screen that driving like that is going to get you some pretty serious jail time? Flat-out lies right there, but how could you call the companies on this?

If you're not allowed to hyperbolize about your product, then the entire marketing industry is doomed. I'm pretty damn sure that the folks at McDonalds couldn't give a flying proverbial at a rolling donut whether I'm smiling or not.....

Marketing People

[JSkills]

But my favorite move by the marketing guy, who after telling me he just sold some functionality/product/magic-button that doesn't exist to an advertiser and then me explaining to him how the project can't reasonably fit into the development schedule (or can even be done at all) is :

"So what do you want me to do? Give the $50,000 back to the advertiser?"

Never mind the agreement between the marketing team and our development team that marketing cannot promise a delivery date on anything before at least having a short conversation with us first - it can often be that surreal, on par with a Dilbert cartoon ...

Ask Germany

[oldstrat]

I would expect that the Greman readers of /. could best answer the question of truth in advertising.
Whin I lived there in the early Late 70's, early 80's one of the cultural differences between Germany and the United States that stood out was that the law prohibited making false claims, and was strictly enforced. If Volkswagen claimed that it's car was better than Ford of Germany, it has better be specific, and provable, not just opinion, inference, subjection.
And the Government took great joy in persuit.

So would software be better if it had to tell the truth? Again, Ask Germany.

Politicians are scre*wd now......

[DailyGrind]

Hey,

Is the software industry the only one that "overpromotes"?

see any weapons of mass distraction yet?

Re:Politicians are scre*wd now......

[Quixotic Raindrop]

Yes, I have. Slashdot is a weapon of mass distraction. As are comics.com, Battlefield 1942, Civilization III, Heinlen's Stranger in a Strange Land, and a whole slew of other items. Millions of people are distracted by them every day.

Re:Vaporware^H^H^H^H^H^H^H^H^HHonesty is Critical

[mykepredko]

Nobody would argue that it is critical for companies to announce where they are going, both for developers and customers.

However, I have a big problem when a company says something exists or can do something when it doesn't. This is fraud.

I don't see any issue for noting on advertisements and product packaging that a product will be able to support a given feature with an expected firmware upgrade or additional feature/download/whatever. The Internet is ideal for telling customers what is happening with their product and when/how/where updates will be available which will add the missing features.

The carrot and stick for Vendors? I know that in my own case when I've bought something that didn't work as advertised, I make sure that people hear about the issues - while they sold one to a sucker (me), there is a net loss of all the people I can influence.

myke

Won't somebody think of the Programmers?!

[Cruel Angel]

So, what happens in this case: The engineers/ programmers start the project, and are later asked by sales to come up with a list of features. The sales people start the hype train. Project goes over budget (or some VP thinks it's takig too long), and it gets release before it's time?
Now you've got software that doesn't do what you said it would. It happens in manufacturing, and I'm sure it happens in every other industry.

Re:Won't somebody think of the Programmers?!

[Todd Knarr]

As a programmer you make sure you document what you promised and on what schedule. And you make sure you can deliver as promised. Then when sales starts promising more faster and gets nailed by this, you can produce the documentation showing that you were delivering on your promises. Then it'll come back on Sales for promising more than they were told would be delivered. And it'll probably be worse for them, because your documentation trail will show that they knew they were over-promising and courts tend to be harder on people who deliberately write checks they can't cash.

Lying to Investors vs. Lying to Customers

[Dork_Knight]

Puffery, exaggeration and just plain lying to the public about your product is usually considered pretty tame stuff, especially if you qualify your fibs with enough weasel words ("we believe", "according to" "you should see" "tests show", etc.). Even if you don't qualify them, but use your tall tales primarily to sell the product, you usually don't incur the govt's wrath (health claims excluded). No one is generally prosecuted for falsely claiming they make the best widget or for failing to meet a delivery date. However, lie or exaggerate to the "market" in order to affect your stock price, (in other words, investors, analysts and the SEC) and all hell breaks loose. Looks to me like this is probably what the fuss is about. It's not necessarily right (why do investors get more protection than customers?) but I don't think it's anything new, Times article notwithstanding.

Forward looking statements

[Stonent1]

It all comes down to that. Marketing people are not accountants or financial analysts. Their job is to oversell everything. Then the legal department has to come in and put disclaimers all over the press releases.

Better...

[anthony_dipierro]

Would the world be better off or not if it was illegal to overpromote the functionality or features of software?

Overpromote in what way? If you say that a feature exists, knowing that it doesn't, with the intent to make a profit, that's fraud, and you should be charged criminally with it.

One sticking point you might notice with my definition is that you have to know that you are lying, and that has to be proven beyond a reasonable doubt.

Software industry problems

[penguinlust]

After reading many on the comments here I have a number of things I would like to say. First, for the last 16 years I have tried to honestly create solutions that are innovative and useful. At the same time I have tried to set expectations and schedules that were achievable. This can be a difficult process and is made more difficult by both the engineers and management.

At one company a number of years ago (who shall remain nameless), I was told by my manager to cut my schedule in half. This should be based on hireing 3 new engineers (doubling my staff). And then she said it did not matter if they were actually hired (we had no reqs for them) because it was expected that software schedules will slip.

I the other side I have not been selected for several very interesting projects as an engineer because I was honest with the manager about the chances of success on time. I would not commit to having a product on a data I knew could not be achived. On at least two of these I was brought in in the end to try and work some of the problems out. One was so badly done I left for another company rather than be stuck with it.

Since then I have been just and engineer on a couple of projects and back in the low level manager / project architect position on a couple others. I now have an MBA and more training in project managment. I still do not know how to adaqutly bring the two levels together.

The MBA tought me some basic business information which has helped me alot. It also tought lots about managing employees that I beleive are more contributors to the problem than solutions. And I think this is the basic problem with Enron Broadband screw up.

Enron is just one example of the problem. The whole dot com crap more of the same. Most of it starts with somebody who has an idea, builds a business case for it and downplays all the problems. Expectations to investors are set that are unrealistic due to lack of business sense. Investors put money into it no understanding the technical road blocks and set expectations back to the company that are unrealistic. A great deal of this goes beyond tacking a calculated risk.

In this industry, everyone has a grand story with a kernel of truth. Open source software is no different. I like it because I can take the source and solve my own problems if I have the time. However, a very small percentage of people can do this so it is at best a minor argument. Much of the claims I have seen over the years are out right fraud. I left companies that were good because a buy out changed companies from engineering to hype / fraudulent.

Big business in the US is based mostly on hype. To keep "market share" this is necessary. Enron Broadband was a hype. It had a core of truth masked by hype in a search for that all important market share. In this case it was also fraudulent because its hype was so large that it was out right lieing and not just streaching the truth. It occured because business in the good old US of A is about making money and NOT about producing products. As long os the multi nationals can keep paying off politicians this will not change.

My tirade is ended. All of you who stated you could go to jail if this is true, check your resumes. In the economy today getting fired is just as bad as going to jail. Maybe you are guilty.

What you need to do...and a BIG QUESTION...

[PatSand]

Been discussing this with fiance.... After we have been laughing and hoping several PMs, execs, developers, etc. we've worked for start having Chronic Brown Underwear Syndrome...

Looks like some old tried-and-true methods for reporting are even more useful today:

1. Be honest...let your boss overrule you, but be honest. Your boss may well be aware of other factors you don't/can't know...valid business reasons.

2. Document up the significant/questionable decisions made in a confirming e-mail (good/bad/who-cares)...to your boss and higher-up, if you believe it opens the company to liability/fraud. The goal here is to have an e-mail path folks can refer to...and make sure everybody agrees on what to do.

3. Save you outgoing e-mail to disk and perodically save it off-site, respecting company confidentiality, privacy, and security restrictions. At a minimum, copy it to another file/system/directory on your network where it will be saved to long-term storage. Lawyers/Government folks can subpoena this stuff and go through it if things get criminal.

4. Don't run out and do something questionable just based on verbal instructions...make sure you send the confirming e-mail...gives folks a chance to change their minds, deal with changing requirements, etc. This has saved my posterior on many occasions as an architect/dba/designer...

5. If it don't smell ethical, it probably isn't. You definitely want some protection if it comes back to bite you...confirming the order (and put in words like "...unless I hear differently from you in e-mail or writing before X, I will perform these actions you have ordered...") will save you a lot of legal expenses.

6. You can go overboard on everything, but I think most people will know the right balance to document. Think of it (and sell it) as "confirming the tasking resulting from the meeting/decision". Or as "Trust but verify"...

This probably sounds like excerpts from the Big Book of CYA, which it is in part, but also helps your boss keep focused on what you are working on. And if a schedule is revised from higher-ups, it will point up from you...and save you from explaining/defending yourself.

NASTY REALITY ALERT: What you don't want to do is be told to check something in and have your boss declare it done...with no confirmation or status indicating it was not ready...it then gets into a "you said...I said" situation that sleazoids can weasel out of. Yes, you can have your career defined somewhat by these actions (certainly has happened to me--had to change jobs) but you're not going to be sued or have trouble sleeping at night because of this...If you can't be (perhaps tactfully) honest as a software professional, you should change careers...that's what's caused this mess... END NASTY REALITY ALERT

I figure the execs will get hammered and some developers who really lied through their teeth will get slapped.

Big question remaining: If software development gets offshored, who is liable? Will folks have to sue developers or their companies in India/Russia/Phillipines/etc. for recovery? Or will the U.S. executives making these outsourcing decisions and taking delivery of the products be on the hook...?

I don't think the Hogan's Hero's answer by Seargent Shultz ("I know nothing!") will work anymore...

Next we'll outlaw breathing

[zejackal]

Hyping your product is often, not only necessary, but unavoidable. Certainly there is a fairly large degree of dishonesty in the tech community, but often the only way to describe a device is with a vague easy to undertand description. As an engineer, you have to describe your design to business types who really don't know crap about technology. In the dumbing down of your description you have to generalize, and the problem with generalizations is that they can often be misinterpreted.

Let's say you're designing a video data link. Your boss doesn't know and frankly probably doesn't care about the clever compression and variable bit rate stuff you've implemented. If you got into stuff like channel characterization and configurable modulation parameters, the glazed look in the higher-ups faces would make you wonder if the water at the meeting had been spiked with thorozine. So you simplify, and say you can send video up to 5km away. Now this isn't a false statement, it just doesn't say that at that range you have increased compression and a lower frame rate. However, from that simplified description, someone, somewhere, may end up saying you can send 1080i signals for miles.

The point here is that even when there is no deception intended, product descriptions have to be understandable to a large number of people of. This results in a generalized description which is open to mis-interpretation.

Absolutely better off!

[swb]

Would the world be better off or not if it was illegal to overpromote the functionality or features of software?

Too many of society's current problems have to do with the ever-widening gulf between "legally acceptable" and "morally unacceptable", particularly in the business world. WorldCon, Enron, the whole investment banking industry pump 'n' dump of the late 90s, the car dealer, and many commonly accepted marketing practices can ALL be blamed on people doing "what's legal" but which are by any common standard of ethics dishonest.

Even spam (especially spam?) can largley be blamed on people marketing "products" which really don't work or for promoting "deals" which really aren't.

It'd be great to see more significant penalties and more streamlined punishment procedures for what essentially amounts to dishonesty for dollars.

The case of vaporware is essentially just a subset of the larger problem, and can be a particularly malicious tool used by big companies against small companies when product choices and switching are high-cost endeavors.

False advertising is illegal

[192939495969798999]

If I say I'm selling a V-8 and it's actually a V-6, that's illegal. There should be no difference in the software world! The companies know what the software does, and if they say it does more than it really is capable, they are attempting to deceive their customers.

Over-promising and under-delivering

[thewiz]

To overhype/promise on the features of anything and then underdeliver is a sure way to kill a business. As a business owner, I've seen many businesses go under because of this. It's unfortunate that the software industry doesn't seem to understand this fact. It's also ridiculous for people to keep clinging to the hope that the software company will eventually produce instead of finding another product (OSS software anyone?) to fill the need.

Don't get me wrong: some of the vaporware EVENTUALLY becomes reality but how much of that actually lives up to the hype? Not much.

I've learned that, to keep my customers satisfied, I have to fulfill their NEEDS, deliver on those promises, then go the extra mile by providing more than they expect. It's the best way to get customers to come back for more.

Wrong on puffery.

[Anonymous Coward]

You are wrong about puffery. Puffery is not a "slight" exaggeration... it is an over-the-top claim that is obviously not factual... like claims "this is the greatest car in the history of the world!"

Back to the original post, it is easy to define the endpoints of what should and should not be criminal vapor-hyping... if you do it to forestall consumers from buying a competitor's product... if you do it with the intent of making a competitor try to duplicate it.... Basically, if you do it to gain a competitive advantage, but know it is a feature/product that you aren't going to offer or not in the way you promote it.... that deserves some time in the iron-bar timeout room.

Announcing something that you simply fail to accomplish or not following through on something that the market tells you they don't want after you announce it.... is at the other end of the spectrum.

The grey area in between is the killer. You have to get into the state of mind, and big corps are good enough at masking the details, they will make what should be criminal vapor-hyping look like innocent failure to produce. They will introduce "weasel words" into everything... instead of saying "XX will offer 4x speed over YY" it will say "we hope for XX to offer 4x speed over YY"

Essentially, you will have to have a smoking gun memo saying "I know there are no plans for it, but lets announce that XX will have feature blah-blah anyway to preserve market share for 6 more months."

The only other way to do it otherwise, is to write a statute that requires a party challenged on its claims about future products to back them up... and then you get competitors doing it for harassment and to uncover a competitor's strategies. The FTC (and FDA) already has this problem in several areas.

Clear as mu

Not an issue

[CAIMLAS]

This isn't an issue, because anyone that installs commericial software (typically) forfits any right to protest, copy, refund, etc. before they even install it through the court-proven click-through EULA.

I suspect it would mostly apply to more of the custom-application market (banks, hospitals, restraunts, etc.)