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Why Can't Microsoft be Sued Under the Lemon Law?
briant97 asks: "Microsoft is sitting back making all this money by charging for desktop and server operating systems. If you go for a server, they also add additional charges through client access licenses. Well, now that they've charged you all this money they leave their software open to viruses and exploits beyond belief, which will cost your company even more money. When will it stop? When will Microsoft become liable for their actions? I mean they are making billions while costing other companies billions. Ford, Chevy, and all other car manufactures get held liable if they make a defective product, why not Microsoft?" One can argue that you sign away your right to seek damages from Microsoft, by agreeing to the EULA, however there is still this issue as to the strength of a EULA since they've never been tested in court. How do you feel about this subject? Should software owners be allowed to "sign" away their basic rights via click-thru licensing, or should software manufacturers be liable for the critical defects that show up in their software?
because software is traded "as is" - first of all, there is no transfer of property, so there is no sale, hence most consumer protection laws don't apply. Second, consumer protection law is there to protect you being fooled by dishonest tradespeople. Since it is sold "as is", and moreover, since the only people left on this planet that don't know that Windows is a stinking pile of crap is some lost tribe in the dark jungle of borneo, you can't really claim to have been tricked now, can you?
Just don't buy it to begin with.....
People who think they know everything are a great annoyance to those of us who do.
well for one thing, my server is not going to hurtle out of control and kill a bus load of nuns if it's defective.
If software had to live up to safety standards the same way physical products did, the authors of the software could be sued just like the makers of the physical products.
"But that's great!" you say. "Microsoft could be sued until they were just bits of blackened rubble!"
Yes, that would be wonderful.
Now, what about the floating-point exception handler bug in Linux? Well, looks like we'd have to sue Linus et al.
I'd be willing to bet that Microsoft would take a lot longer to reduce to rubble than Linus and his ragtag crew of happy software authors.
Even if you limit it only to software that's charged for, well, then, good bye RedHat. Ditto Mandrake. Bye SuSe. It's all over.
Basically, if the authors could be sued, then there would be no software industry.
I know the question was also asking why they couldn't be sued for allowing viruses in. Well, why can't Ford be sued for letting me drive my car on roads? There are *wrecks* on roads! What is Ford thinking??
The point of this whole rant is: Software is far, far to complex to be held to the same standards as physical products. Mankind has been making physical products for around 200,000 years now (if not more). We've been making software for 50. Let's wait until we have the same kind of experience making these products before we hold them to the same standard.
...but it's being eaten...by some...Linux or something...
It's bound to happen eventually. And I have to believe that the liability for software would not exceed it's purchase price unless there are punative damages for gross negligence. I was told by an engineer who sometimes works as an expert witness in product liability suits that it's very hard to prove negligence, so I don't think Joe College-student who is giving away his Free and Open Source project for free would be affected.
At least in the US anyone can sue anyone for anything. Winning however is difficult. Still, if you think you have a case call a lawyer and present it. If you really do have one, lawyers are good at filling in the details. Details like perhaps lemons laws are not the right path in your state where some other law is better.
Warning: not anyone can win a lawsuit. And you can be counter sued. Still slashdot is not the place to ask, most of us (such as me) are not lawyers, so we aren't aware of everything.
Even if EULAs are valid (which as others have noted is not tested), nearly all states will not allow you to sign away some rights. Might help you in itself. (if nothing else why test the EULA if the clause they are using isn't valid in your state)
There is one more downside: you have to deal with lawyers. No matter how evil you call Microsoft, lawyers are worse! Only sue if it is really worth it.
Not so sure about open source: When you use a Microsoft product, you pay them for it. With this in mind, you can discuss what sort of liability they have. OTOH using open source products is free, so using them is like using a knife someone gave you for free: If you cut yourself, it's your problem.
Of course it's a bit more complicated when you pay a programmer to do open source development for you. But I don't think it's su ch a bad idea that such a developer be held liable for her code.
Surely in that case the purchase price of the software would be zero, in which case accordingly to the grandparent's plan, the student would be liable for zero.
The Uniform Computer Information Transactions Act is what gave force to shrinkwrap disclaimers of product liability. Under UCITA, a customer can't sue for damages exceeding the price of the product. If a person disagrees with the liscense, they are supposed to ask for a refund, which must be given under the law. (I tried this, and neither the store nor Macromedia would honor this. The 'cannot be used for commercial purposes' restriction on my educational-discount copy of flash, which wasn't made known until I tried to install the product, rendered the program absolutely useless to me. It was like having a bike and, after buying it, being told the company would prosecute me if I tried to ride it.)
Virginia was the first state to pass UCITA. Probably no small coincidence that AOL is headquartered there.
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It's the end of my comment as I know it and I feel fine.
You can't sue the car company because someone else dented your car or poured sugar in your gas tank. For all intents and purposes windows works, it's just third party interference that becomes a problem.
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