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Examining Software Liability In the Open Source Community
snydeq writes "Guidelines from the American Law Institute that seek to hold vendors liable for 'knowingly' shipping buggy software could have dramatic impact on the open source community, as vague language around a 'free software' exemption could put open source developers at litigation risk. Meant to protect open source developers, the 'free software' exemption does not take into account the myriad ways in which vendors receive revenue from software products, according to a joint letter drafted by Microsoft and the Linux Foundation. As such, the guidelines — which, although not binding, are likely to prove influential on future lawsuits, according to attorneys on both sides of the issue — call into question the notion of liability in the open source community, where any number of coders may be responsible for any given defect."
I'd say that ye olde standards of gross negligence and recklessness should cover any profoundly careless bugs.
The trick is to get them to apply to corporations like MS.
First point, if someone working for hire at Red Hat, Novell, or IBM knowingly (how's that defined?) ships buggy open source software, why shouldn't the company be held liable, if they would be held liable for shipping buggy closed source? Second point, who is going to sue some no-name contributor who doesn't have any money anyway, especially if you have to prove that that particular developer knew there were bugs? I love open source, but I feel that if we as a community want to be taken seriously, we should be held to the same standards as closed source software.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
I suspect that in commercial software, there is an implication of warranty (because the customer paid for it), and that warranty can't always be signed away by a contract (because of things like consumer protection laws).
I would think that if a piece of software is free as in beer, it would be easy to explain to a judge that the project authors had no business relationship with the user, and thus could not be held liable.
It's sort of like the "I am not your lawyer, this is not legal advice" disclaimer--the person giving advice is less likely to lose a malpractice suit if he/she says "I have no business relationship with you, so don't take this with the same gravity that you might take my real legal advice."
A cat can't teach a dog to bark.
I'm not anti-FOSS in any way, I'm just wondering why it would be exempted...
Would you spend years of your life making something useful, then give it away freely, and subsequently be sued to the point of losing your house, just for fun? At least commercial businesses are actively trading risk for gain; the open source developer only gets the risk part of the equation here.
I can see an entire industry spring up around finding bugs and sueing the maker of the software (much like the patent-sharks of today). You don't even have to read the source, just download a copy of whatever you want to hit and look in its Bugzilla tracker...
"NO WARRANTY OR GUARANTEE IS IMPLIED. USE THIS SOFTWARE AT YOUR OWN RISK" or some combination of that. Even my home server says that every time I SSH into it.
There is no reason that a legislature cannot pass a law saying that this disclaimer is contrary to public policy and won't be respected in the courts.
For instance, in my State, contracts to purchase a car that are "AS-IS" are not legal. You can write those terms into the contract and the buyer can sign it, but if she turns around and sues you the Court won't give effect to that part of the contract.
Another example, I cannot rent an apartment or house "AS-IS", I am required by law that my rentals conform to a general standard of habitability. It doesn't matter how many times in the rental contract I disclaim any warranty of habitability, I still have to provide a habitable dwelling.
Consumer protection statutes are full of these sorts of provisions that forbid the use of certain kinds of terms and conditions. You can't sell food without a warranty of non-contamination or edibility, you can't sell children's playground equipment without a warranty of safety, .....
TL;DR version: the law does not have to respect your right to contract under whatever terms you see fit (I'll leave the normative argument of whether it should for another time & place).