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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."
"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.
So.....you're going to sue a developer for a defect, intentional or not, even though they said it was not warrantied and use at your own risk?
import system.cool.Sig;
Bug free software is possible, it's just very very expensive to produce!
I've worked on DoD projects that required bug free software. It is possible, it just requires $150 Million to produce 100,000 lines of code.
Do you really want to force Microsoft or Apple to produce bug free operating systems? Who could afford them?
Another stupid babysitter law to protect idiots.
At a previous job I asked my boss why we used Oracle and he said that if anything ever went terribly wrong, the company would have someone to sue. Of course, suing someone doesn't restore customer confidence, data, or revenue. No verifiable technical reason, just that OUR lawyers got warm and fuzzy with contractual language that would never, ever get exercised and if it ever did try to sue anyone we'd have run out of money before they dipped into their free soda fund.
Anything that executes code is buggy. Applications, frameworks, libraries, protocol stacks, drivers, bios', FPGAs and microchips. Grow up and deal with it.
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
Other than the fact that people hate software bugs, which is fair; but insufficient reason, why should a general liability be presumed to exist?
For software purchased as a custom/customized enterprise type setup, with guys in suits, and contract negotiations, and spec documents and whatnot, surely the parties involved can settle any questions of bugs, liability for bugs, responsibility for timely fixes, etc. as a matter of contract between themselves. Perhaps it would be convenient for a de-facto standard set of terms to exist; but I don't see why any legally binding assumption needs to be made, beyond what was specified in the contract.
For the consumer/shrinkwrap/non-custom stuff, I'd be strongly in favor of a right to return for refund if defective(though deciding exactly what level of buginnes qualifies as "defective" could well be tricky, and settling the issue of whether or not "being able to run on joe sixpack's box-o'-spyware-and-rootkits or timmy the tweaker's bleeding-edge-super-nlite-professional-l33t-3dition-h4x0red-windows-box" is actually a reasonable expectation could be a nuisance); but liability beyond that, unless actual damages can be demonstrated, seems unreasonable.
Already, if software is being used as a component of a system(medical, aviation, whatever) where bugs matter, it is subject to those standards, establishing a set of liabilities for software generally just seems like a good way to encourage ever more onorous disclaimer contracts and quash free/OSS/cheap software.
Google would have joined them, but Beta software doesn't count.
That and the Universe asploding
So.....you're going to sue a developer for a defect, intentional or not, even though they said it was not warrantied and use at your own risk?
No lawyer will sue individuals developers . . . they have no money. They will try to sue a big company, um, like what SCO tried with IBM. Lawyers go after the money.
Some big companies even forbid their programmers from working on Open Source projects on their own time . . . unless they are approved by their employer, of course. Because the lawyer suing will try to twist it so that the employer is responsible . . . because only a big company has enough cash to make it worth their effort.
Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
"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).