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UK Court Finds Company Liable For Software Defects
normsky writes "A software company's stipulation that it couldn't be held accountable for the poor performance of its software was unfair and could not be enforced, the High Court has said. 'Pursuant to the Sale of Goods Act 1979, a term is to be implied into the contract that Entirety would be fit for the purpose for which it was bought, namely that the system would increase revenue and occupancy levels and would allow quicker check-in and check-out, including accurately processing groups and making changes to group reservations while preserving the accuracy of the system. I am satisfied that Entirety was not fit for the purpose for which it was sold,' his Honor Judge Toulmin wrote."
Great news - and am happy this is being done. Maybe if this is held as a precedent, more software will be written sensibly and with fewer stupid bugs and features.
I think it is unforgivable that software companies can provide us any software they want (esp. in enterprise software) and get off without any problems. All this is due to very little attention paid to during the SDLC to thinking of problems and use cases and testing.
Yay good for UK - and hope developers in US also get their feet held to the fire soon!
Although, in this case, despite being a business, the recipient / purchaser was treated as a consumer, given the one-sided nature of the negotiations in respect of the clause in question. (I.e. doing business on the other side's standard terms.)
Similarly, had there been sufficient opportuntiy for the purchaser to test the product, rather than relying on a demonstration by the vendor, the outcome may have been different; as, potentially, would have been the case in which the vendor had pointed out that the software had particular known problems / lack of support in certain areas.
If this is upheld and catches on, it could have pretty horrid implications world-wide, especially with how willing people are to litigate against companies (such as Google) that are actually based in a different country but have presense in the litigator's country by virtue of internet access....
You can mod your friends, you can mod your nose, but you can't mod your friend's nose.
Yes, and every hobbyist now has to worry about being sued when their code breaks.
There's two sides to this. One is ripe for abuse.
Mr. Ballmer woke up in a sweat in the middle of the night, not knowing exactly why...
Not really. If you're doing something for free, many laws don't come into play. For example, this is about the "Sales of Goods Act". If you're not selling, you don't have to worry.
Accountability for software sold is a good thing. Because right now, there is none.
Only if the hobbyists are *selling* their software. Giving it away for free completely bypasses this.
Then the hobbyist should stop claiming his software was fit for a certain purpose.
This is about how software is sold and marketed, not how it is written.
Sale of Goods would not apply, if no goods were sold.
Somebody try and convince this judge that the BSOD is a FEATURE and not a defect.
-Neurosis should be taken out in sex instead of politics and IT.
Yes, and every hobbyist now has to worry about being sued when their code breaks.
If you are a hobbyist, you should not sell your software. Leave it for the pro's
Not only does the UK acts say it has to be fit for purpose, but also that it should be durable for what a reasonable person would consider reasonable. That should mean that patching for security etc, should be available for a reasonable period as a right.
I think it is unforgivable that software companies can provide us any software they want (esp. in enterprise software) and get off without any problems.
Provide any software they want? Nobody forces you to buy anything!
I think this is entirely idiotic. Basically the hotel was too dumb or lazy and bought software without looking at it. That's entirely their fault in my opinion.
I mean "Red Sky sold hotel management software to London's Kingsway Hall Hotel but the Hotel found problems with it almost straight away." says it all: they didn't even take a good look at what the software does and bought the proverbial pig in a poke.
They bought the software even though they claim the demonstrations were horrible. They want to be compensated because they failed to correctly assess the software they bought. The hotel is run by idiots (apparently so is the court).
I say the software maker should sue the hotel into the ground for libel, ignorance and general stupidity.
I imagine you'd only be liable if you actually sell your product to someone, for money, promising them that it'll do something for them. If you just whacked a GPL programme on a website with a label "here is my programme, may or may not work, YMMV", I doubt you could be held accountable for what anyone does with it.
The crux of the court case, if I read it rightly, is that in the UK you aren't allowed to promise your product can do things that you know it can't do and then sell it to someone on that basis. That's standard- what the court case tested is whether putting "(but it probably can't)" in the small print is enough to get you around that. Turns out its not.
That's a good thing.
'Pursuant to the Sale of Goods Act 1979, a term is to be implied into the contract that Entirety would be fit for the purpose for which it was bought,
Granted, you can sell open source software, but I bet the vast majority of OSS is given away freely. It would therefore not count as a sale.
Reason two: As an example, doesn't the GPL state that the software comes with no warranty? I'd think that would free the creators from liability issues with regards to bugs or functionality.
That Anonymous Coward guy is pretty annoying. Can we have the government censor him or something?
Er, the whole point is you can't assign away any responsibilities if you've sold it at all. It must be fit for purpose.
It all depends on what was said at the time - maybe the demo went badly but the software provider says "oh yes, it will do that in the final version", or made other such promises about the performance and ability.
While it might be good to hold commercial companies responsible for the software they sell it can place OSS developers in a very bad situation.
If you sell your software to someone using only a rigged demo to convince them, then yes - you'd be liable if it wasn't able to do in reality what it seemed to do in the demo. With OSS - and heck, many commercial apps - you can usually evaluate it first, in which case this law would not apply. AFAIK it was the fact that they weren't able to evaluate it properly which caused the problem.
A free service is not governed by business laws because there is no payment. Even a judge who has never heard of computers should see that, so there is little danger there.
Just make software the same as all other goods. If not fit for purpose I can return it for full purchase price, when that purchase price is zero, I can return it for that amount. Software companies want the boon of both product and contract sales but are not willing to accept the disadvantages of either, with a product I can return it if defective, with a contract I can sue if the product does not meet requirements while neither apply to software. This one sided arrangement needs to be fixed.
By the same token if someone uses their Toyota Hilux to run over me, I cannot sue Toyota because their product was misused. Current laws that govern sales protect manufactures/producers against what you are concerned about, companies aren't sued if their product is found to be defective, they are withdrawn from sale. Companies are only sued if they knowingly released a defective or dangerous product.
Calling someone a "hater" only means you can not rationally rebut their argument.
On the one hand, I hate the idea of my industry being flooded with lawsuits; along with software patents, it's just one more nail in the coffin of small scale software entreprenuership.
On the other hand, those "we're not responsible no matter what goes wrong and how much damage it did" EULA's are holdovers from the 80's, when personal computers were experimental toys, and software was mostly games. No other consumer product I know of comes with a contract you have to sign which basically stipulates that the vendor takes no responsibility for the quality of the product at all. "If this software goes haywire and blows away your financial records - well, hope you had backups, and a bunch of time to recover them, because we didn't have time to test it, sorry". Imagine if a car or a washing machine came with an agreement like that - "if this thing shorts out and burns your house down due to a design flaw, it's your problem, luser, you should have installed sprinklers". That's bullshit.
Software is a real product in which people now invest large amounts of time and trust. It's time for the industry to grow up and take legal responsibility for its products. So much for "good enough" software - and as a user, I say good riddance, too.
If the hotel believed that, they are unfit to run a business.
Would you believe some random salesman if he said that? Without putting it into writing? I certainly hope not; or I do if you are a competitor ;)
Unless of course it was put into writing and not delivered. But then it would be a regular breach of contract not ... whatever this is.
Microsoft is far more likely to be crapping bricks than any freeware author.
"I've got more toys than Teruhisa Kitahara."
I still think this is concerning. While this particular law is contingent on a sale, the overall point is that the Judge made a ruling based on his legal opinion of the fitness of software for a given application based on a law which could just as well not have required such a condition, as many don't require. Other laws not contingent on a sale having occurred but rather just the distribution of a product or service could therefore be applied to software in general based on this case.
And don't go pulling the "put some pseudo-legalese magic incantation in my code saying its not fit for even the reasonably-implied purpose and all the trouble will magically go away" card because that won't work in the exact high-liability suits(i.e. someone dies, the stock market crashes) it intended to defend the developer against, in the real world.
If you'll bother to read the article (yes, I know...) you'll see that the customer was only given a demonstration of the software by a sales rep and the sales contract said "no money back".
If your software has a free trial period and/or you allow refunds then you're OK - people can try before they buy.
No sig today...
From now on the purpose of all code sold will be "It juggles ones and zeroes."
Unofficially, it might do something useful.
The 'Fit For Purpose' clause of that law only applies to stuff you have actually bought, so giving it away rather than selling it would bypass the Sale of Goods act.
e.g. If I made something that didn't work and gave it away, that wouldn't constitute a sale so the law doesn't apply.
This case is not about accidental bugs, but about intentional ones. I would gladly like to be able to sue a company that slipped a trojan in their application without clearly informing me about it; or one that promises to give me something and instead it only gives me a mock-up or even nothing at all; or one that sells me software that was intended to stop working a year after the purchase without clearly informing me about it. What does this have to do with hobbyists, I do not know... RedSky was sued for fraud (false advertisement) and their application was breaking all the time - it wasn't just a few accidental bugs, it was a complete lack of interest in providing the customer with a functional product.
Yes, it's sarcasm. Deal with it!
Interestingly, the sale of goods act would cover open source software - even if the price was zero. However, it is very likely that a developer could only be sued for GBP 0. The England & Wales and Scots Legal systems tend to support the little (or wee) man and wouldn't allow a huge writ to sue a hobbyist unless they were making buckets of money out of selling poor quality software.
Section 14 in the Sale of Goods act determines quality and it falls into:
1. were the goods or services fit for purpose?
2. were the goods or services of satisfactory quality?
fit for purpose statement really concentrates on the act of sale. In open source that would be the claims made by a website, or statements by the developer about the product, perhaps in a blog.
satisfactory quality (sometimes known as merchantable quality) would focus on the expectation of quality. which in front of a jury would probably get nowhere with an open source bit of software even if a service contract was in place.
where this case is very interesting is that the standard terms and conditions (i.e. the EULA) was once again not enforced or recognised and fell foul of the Unfair Contract terms Act. Are you watching Microsoft? because this applies to you and the EULAs for Windows 7.
Er, the whole point is you can't assign away any responsibilities if you've sold it at all. It must be fit for purpose.
It's a limited ruling, but my hope is that one day a Ralph Nader crusader will arise in our midst declaring Windows to be "Unsafe at any Speed". ;-)
This case isn't really atypical of the UK and the EU. Being an American ex-pat who works and lives in the UK, I am always amazed to see how many US companies don't understand the implied warranty and fitness for purpose concepts in UK and EU law. The terms of service of a lot of software don't mean anything, it truly is about if the seller and the consumer are fair and equitable with each other and it is very hard for the seller to be able to constrain the rights of the consumer. Take for example BSkyB for EDS where the contract cap was broken because EDS was deceitful in the sales process about the timelines it would take to implement a solution.
D.O.U.O.S.V.A.V.V.M.
Yay, higher prices for software. What, you expected a lower bug rate without any added cost? At least now you won't have the option to buy software of current quality at a discount; you'll only be able to get the finest (at a higher price).
And don't go pulling the "put some pseudo-legalese magic incantation in my code saying its not fit for even the reasonably-implied purpose and all the trouble will magically go away" card because that won't work in the exact high-liability suits(i.e. someone dies, the stock market crashes) it intended to defend the developer against, in the real world.
Just because you don't want it applied isn't enough. The "Sale of Goods" act doesn't cover free things. "Fit for purpose" requires a stated purpose. And this wasn't about bugs, it was about software that didn't come close to doing what the salesmen asserted it did. It wasn't just a big, but it was a piece of software that didn't really work.
This is a great ruling for the people. Someone lies to sell shit that doesn't work, and they get sued. "It's a bug" isn't a defense of fraud. That's all this means, and your "I refuse to listen to anyone that disagrees with me using arguments I don't have answers for" comments can't change the reality. This doesn't affect OSS, and it doesn't affect people that ship products that actually work (even if they have bugs). The software in question didn't do what it was sold to do, and so they should be sued and should lose. *Everyone* should like this decision except people who engage in fraud.
Learn to love Alaska
On th other hand, many free software projects, despite being perfectly usable, often don't actually leave alpha. I think a lot of this has to do with claims made about the software from the manufacturer. If you're clear that it's a work in progress, etc. I think you're in the clear.
The last time I heard of Microsoft being sued they settled by giving 20 mil worth of software coupons to schools. This was their punishment for being an abusive monopoly, they were forced to engage in a marketing campaign.
I don't see Microsoft crapping bricks anytime soon.
Jim looked at the old storage with nostalgia. Here were many thousands of virtual machines which once served the grand purpose of moving the enterprise forward. For the most part they were identical smart clones but here and there the user had customized to suit his needs in novel and interesting ways. They might have been notable innovations if anyone cared. But space is space, and nobody had accessed these VMs in a very long time.
So he clicked delete and they were gone - the last Windows desktops. They won't be missed. This is how we gain room for progress: by taking out the trash.
Help stamp out iliturcy.
If someone has used freely avaialable open source code to control a dangerous machine or play the stock market, it sounds like it's their own fault rather than the fault of the original author (who may not have intended their source code to be put to such uses). As the GP said, selling someone something vs making it available as reference code for them to do what they like with it, are two completely different things.
which is totally what she said
"his Honor"
Honour Honour Honour Honour Honour Honour Honour Honour!
Gah!
.
They will never know the simple pleasure of a monkey knife fight
In America, the buyer must beware: there's this weird idea that it's OK to con someone, because they should somehow know that the person they're buying from isn't trustworthy, essentially throwing all "perfectly informed and rational consumer" theories out of the water. Western European countries tend to have the different opinion that you don't get to fool someone any time (unless you're a civil servant or banker). Sales of most goods are very much not final - for example, the Distance Selling Regulations stipulate a trial period for many goods bought online. So:
1. Do you feel your software is of good quality?
If YES, go to 2.
If NO, give away or do not distribute.
2. Are you prepared to fix any serious problems with your software found by your customers in the year after you've sold it?
If YES, go to 3.
If NO, give away or do not distribute.
3. Do you want to make money from others on the basis of honest trade?
If YES, go to 4.
If NO, give away or do not distribute.
4. Are you prepared to accept that for a consumer to be properly informed about a complex product, he must have a trial period?
If YES, go to 5.
If NO, give away or do not distribute.
5. Congratulations, you're not a shyster and are the sort of businessman an economy needs.
For my money, It seems that 90 % of low cost ( what else is there )Chinese
crap either breaks, falls apart in the wash or poisons my kids.
Let's go after those scamming fuckers and tariff them out of business.
Not really.
CAR ANALOGY- for the RTFA impaired.
After a quick test-drive around the block...
"So, you say it'll get at least 32 MPG and be reliable for my daily commute?"
"Sure thing! This baby will save you gas money like you can't believe and is as reliable as gravity! You'll cut your commute time in half, traffic notwithstanding."
"Sounds good to me. What about servicing and maintenance?"
"You get an operator's manual and I'll throw in a full repair manual as well, so you'll have no problems keeping it running. Just sign here..."
LATER, no manual insight, a gas bill showing average gas milage in the single digits, exhaust billowing smoke after several breakdowns on the highway with only 2,000 miles on the odometer...
"You sold me a lemon along with a bill of goods! You didn't even give me the promised manuals! Here's your damned clunker- I want my money back and recompense for the repair bills!"
"Sorry, all sales are final and I'm certainly not going to pay for repairs. The contract says it's your responsibility to make sure the vehicle is fit for the intended use."
"What?! But you told me... I'll sue!"
And the buyer did just that. The Judge said that the seller had been misleading when selling the car. The buyer won. The end.
Interestingly, the sale of goods act would cover open source software - even if the price was zero.
I think that this would depend on exactly what you meant. Distribution of software alone (i.e. without embodiment in a physical object, be it a computer or a CD), may not meet the definition of a "good". Similarly, SoGA applies to "contracts of sale of goods"; in the case of open source software distribution, there are likely to be arguments as to whether:
However, it is very likely that a developer could only be sued for GBP 0. The England & Wales and Scots Legal systems tend to support the little (or wee) man and wouldn't allow a huge writ to sue a hobbyist unless they were making buckets of money out of selling poor quality software.
This is, perhaps, a risky statement, given that a contractual remedy should put the detrimented party in the position as if the contract had been properly performed, unless the measure of damages for a claim in tort, for which the remedy is the preservation of the status quo (i.e. putting the detrimented party in the position as if the tortious act had never happened).
As such, the fact that the licensor has made very little from the software does not mean that the licensee could only receive very little in terms of compensation, unless the licensor has an enforceable limitation of liability clause - and, a judge may be more inclined to find that, where the product was distributed without charge, that such a limitation was reasonable. However, without a limitation of liability clause in the agreement, it might be harder to find grounds to limit recovery, where the loss suffered by the licensee, as a result of a contractual breach, was significant.
However, the presence of a bug, or the failure of a piece of software to perform in a particular manner, is not necessarily a contractual breach - it would depends on the terms of the contract.
Section 14 in the Sale of Goods act determines quality
However, s14 only applies to business-consumer contracts ("Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality."), and so one would need to assess whether the hobbyist distributing code a business - merely charging for an item does not make one a "business".
In other words, it depends; there are likely to be situations in which SoGA does apply to open source software (or, to my mind, a physical item embodying open source software, which might then give rise to claims against the software embodied in that product directly), but also many situations in which is does not.
(IAAL, who does a lot of work with Free software, but, these are just my personal views)
AC has hit the nail on the head - there's a reason that, for instance, a company might choose to pay MS a lot of money to use Bing maps in preference to the free solution from Google, and that reason is that they have a legally binding contract which includes accountability on both sides. If you're dealing with an alpha version of the code which is expected to have bugs and comes with no guarantee, that's fine so long as that's reasonably conveyed to the customer and they're happy to take the risk. If you tell the customer you're providing a mature solution that will do X, Y and Z and you're charging a premium for that, it's only right that the software vendors are accountable if it fails on any of those stated counts. If you're worried about getting sued, make it blatantly clear that there are potential flaws in the software - if that makes it harder to sell then either reduce the price or fix the flaws.
RTFA.
The case was based on implied contract terms in a sale of goods. If you do not sell or there is no contract (a license is not a contract), there can be no implied terms.
The exclusion clause was held to be invalid because it assumed that the buyer would be supplied with documentation describing the hardware. The documentation was not supplied, so the buyer relied on the suppliers descriptions, so the supplier was held liable for misleading the buyer.
A hobbyist would not sell (so the Sale of Goods Act would not apply), would not have contract with the user, and would not make disclaimers of liability conditional. Off the hook in three ways, even after making BS claims.
They forgot the clause in almost all free software programs, similar to this:
"There is no warranty for the program, to the extent permitted by applicable law. Except when otherwise stated in writing the copyright holders and/or other parties provide the program “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the quality and performance of the program is with you. Should the program prove defective, you assume the cost of all necessary servicing, repair or correction."
It would be capitalised, but oh, Slashdot.
Like Bill Gates...?
'Don't worry' said the trees when they saw the axe coming, 'The handle is one of us.'
What laws not contingent on a sale having occurred? Negligence and other torts? Not likely: there is no case law suggesting that, and it is a completely different situation so this case has no bearing on it.
What happened here was:
1) There was a sale of goods, and therefore an implied contract term that the goods were fit for purpose.
2) The exclusion clause relied on the customer having been supplied with documentation before purchase that they never received.
3) As a result of 2), the customer relied on the suppliers descriptions of what the software could do.
In the case of hobbyist software
1) there is no sale of goods and no contract (an open source license is not a contract)
2) There are no conditions on disclaimers of liability
3) There is no salesman making unrealistic promises to the customer.
So you really think it's perfectly okay for salespeople to lie about a product's capabilities, and a customer who buys a product and then discovers it can't do what the vendor claimed it could do ought to have no recourse?
That should mean that patching for security etc, should be available for a reasonable period as a right.
Or that the product should be secure against vulnerabilities known to be prevalent at the time at which the software was sold. I would not read it as implying an ongoing duty to provide patches against unknown threats.
There might be more of a debate about threats which, whilst known at the time of sale, were purely theoretical, with no realistic prospect of being a real vulnerability, but which, some point after the sale, became exploitable in the real world. However, in this case, I'd expect a court to take a position of what is reasonable, and to consider that a possible, but, highly unlikely, threat, was not a defect, unless the product was sold as being "secure against all known threats", or the like.
From SoGA 1979:
So yes, giving it away does indeed bypass this law. In that case the only real remedy might be if your code is so unfit for purpose that it could be claimed to be negligent, but there are very strict rules and tests in place to establish negligence, and the finger of blame would more likely fall on the person who relied on your claims without testing them unless there were very special circumstances.
Interestingly, the sale of goods act would cover open source software - even if the price was zero.
I am not a lawyer, but I fail to see why. From the Sale of Goods Act 1979, 2(1):
A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.
I doubt £0 would constitute "consideration" in this context.
As far as I can see, the most significant consequences of this ruling are that:
This is particularly interesting because if EULAs do have any legal standing at all here, then they are probably a contract of adhesion based on technicalities about copyright.
I imagine some lawyers are running around looking nervous at quite a few big software companies this morning. All those DRM systems, for example, just became a bit of a liability: if I install a game and it simply doesn't work, then all those arguments about not returning opened products for a refund just became untenable. (Take note, Ubisoft and games shops.) And if you play silly wotsits on someone's computer to try to install your software's copy protection system and you get it wrong and damage their system, $DEITY help you, because it looks like the courts aren't going to. (Take note Sony, Adobe, et al.)
Of course, we'd have to see the complete context before reading too much into this case, because it sounds like the sale was made following significant contact between the parties and specific claims by the sellers, which might or might not still be the case with typical off-the-shelf or preinstalled software.
... MS ... contract ... accountability on both sides.
Congrats. You've made my day. That has to be one of the funniest sentences I've read here on Slashdot.
Tell me, when was the last time you read a EULA for a Microsoft product?
Arguably, even if you charged a fee for the use of your software, the disclaimer that it might or might not work could be enough to protect you - there is no implied fitness for purpose under the Act, it has to come from a specific claim, so unless you're making claims about the exact benefits of using your software, as a hobbyist you should be fine. As a business, selling a bespoke piece of software, you'll probably be bound by specific contract terms regarding a failure to deliver, so this only really applies to companies selling off the shelf solutions with wild claims that they can't meet, and in that case it's got to be a good thing for everyone.
On a note - whoever classed parent as "Troll" must be the real troll.
Anyway - for some reason we have been living through an era of too many years where accountability for defects in a product never have been applied to software, only on most other products around us.
Today there are tools available for ensuring code quality (functional quality, not cosmetic quality) - like FindBugs, so there is no excuse except the weak excuse of pressed time schedules, which often is caused by improper time management in the administration.
Of course - there are no tools available to understand the business model of a customer to be able to create a workflow in a software solution to suit that customer. That takes time and requires a study of work process. But that doesn't mean that it can't be done in a different way in a new software since it leaves room for improvement.
Of course - there will always be bugs and quirks, the important thing is to make sure that the bugs and quirks aren't fatal for the operation. Flexibility of an application also allows the users to handle the application in an unexpected manner which can cause problems. However a too strict application will cause more trouble.
Testing is important, but it's important to realize that unit testing can be a problem as well as a help. A minor software change can cause a cascade failure of the tests cases written causing a minor change of the core code to be a major overhaul of the test cases. This may of course be caused by bad overall design, or bad test case design. At some time in the lifecycle of a solution it's time to raise the level from the individual modules to the system as a whole. Module testing can in no way save an application from troubles caused by a bad overall design.
System verification is always late in a project, and since time is running short at the end of a project that phase is often pressed through in a hurry leaving design mistakes big as grand canyon open for the future. Performance testing is also something that is left to be resolved later. Of course - you can't fix all performance issues during development and system verification - just give it the best shot. It takes a lot of experience to design a system that scales well - however sometimes it contains some bottlenecks. The skill is to identify and hide the bottlenecks in the best possible way, usually by doing background processing unless a redesign can resolve the performance problem. However some performance problems are hard to resolve and others are expensive in the cost of man-hours and application complexity. An example would be a statistics module executed quarterly in an organization. That usually uses a predefined set of rules and is ideal for background execution.
An example of a bad solution when it comes to user experience is the fact that in Windows when you have mounted drive on a remote server over a slow connection it can slow down some operations incredibly since the computer "needs" to address and get a response from that drive before it permits you to continue a simple operation like a "Save As..." even though you didn't have that drive in mind.
If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
How could there be a money consideration without payment? You says its questionable, but surely "money consideration" must require a payment.
Another thing with open source, is you often do not download it from the author. All the software on on my computer is either:
1) downloaded from whatever repo mirror I am currently using
2) off an iso which I got from a torrent
if there is a transfer of property, who is it from? The author or the download mirror? If its a torrent, does that change anything?
I don't think so - if you read the article, this decision was based on very specific issues with the sale of the software to the client, specifically that the seller gave direct advice to the client which the client based their decision to purchase on.
SoGA requires a consideration - that needn't be cash, it could be in the form of a service or the transfer of some other goods or chattels, but the key point is someone just downloading a free piece of software does not automatically enter into a contract of sale, even if they have to agree to a EULA or similar before they use the software. Unless the user is giving something back to the developer, it's simply not a sale, and SoGA is very specific in that it can only apply to sales and can not be extended to gifts.
They are most informative, for those above crying about imaginary worries that this decision causes liability which did not exist before for free / OSS developers. It doesn't make even things harder for commercial developers, provided they're not a bunch of conniving idiots.
Here's the crux, on which the claim relies and the defense fails . .
in para 66 Toulmin finds: "*Red Sky's advertising materials for Entirety make specific claims for Entirety*. They include, among its other advantages, that Entirety "dramatically increases revenue and occupancy levels, allows quicker check in and check out service to paying guests. "This is the essence of the service Red Sky was claiming to provide for Kingsway. "
But the real fun is to read how Red Sky's case collapsed . .
some choice quotes from the findings, no particular oder, edited for brevity:
"Mr Benson was ill prepared when he came to give evidence. . . He said in his CV that he had been employed for seven years immediately preceeding his employment at Kingsway. This turned out to be untrue. . . His witness statements gave the impression that he was responsible for IT contracts . . In oral evidence he had to admit that, on the contrary, he was employed by Ramesys as a technical installer . ."
"Mr Edwards was at all material times the Managing Director of Red Sky. He said in oral evidence that he understood the business side but not the actual detail as to how the software was used. "
"Ms Howard found herself in the uncomfortable position of having to defend the Action on behalf of her superiors . . " (they left it to their junior to defend the court proceedings against them! Wow!)
"Reverting to Ms Howard, there appeared to be times when she was covering loyally for the inadequacies of Mr Frost, to whom she reported, and others at Red Sky. Her witness statements contained important and glaring inaccuracies."
so in summary, the vendor lied outragously both about their product capability (not thinking to find some choice disclaimer either in their ad - copy nor in other material representations to the original sale which might have gotten them off the hook) and stumbled into court still telling a pack of lies.
FOR THOSE NOT CONVINCED THAT THIS IS OTHER THAN BUSINESS AS USUAL, PLEASE SHOW ME WHERE IN TFF (the f findings of fact)THERE IS A INTERPRETATION OF LAW AS TO THE EXTENT OF WARRANTY WHICH REVISISE PREVIOUS LAW???!!!
Frankly, it's just an silly workaday case, short in findings, and frankly rather fun to read.
Says plenty about the journalists who highlighted this that they could write more words than obviously they cared to scan - read even from the source.
As to the case itself, meh, nothing to see here, but gotta feel sorry for Ms Howard.
Or very very happy if you're her employment attorney, depending how you look at it . .
No, but I work in IT and know how to ensure that I am not being misled. Now look at it the other way round, you call a hotel to book a room, they tell you it will be 5 star, have a TV, en-suite, king size bed, etc. etc. Now when you get to the hotel to use the facility, it's nothing like you were told - is it your fault for not checking (in person) that the room is suitable *before you turn up to use it*?
And in the real world, nobody would put Open Source software into enterprise use without any supporting company or internal evaluation. If someone started using like... GNU StockManager (made up) to manage their stock exchange, without any review or 3rd party support, then they would to some extent deserve what happens. This means that either you should count on external services (IBM, etc.) to evaluate the suitability of the product you want to use before putting it into practice, or have an in-house expert to do so. In the case of 3rd party commercial software, the seller is reasonably expected to do that. They have sales teams that promise the world. Open Source software usually doesn't. (Open Source software also usually realistically states its current features and limitations, instead of trying to sell at all costs, since there isn't much financial motivation to do so.)
Of course, because it's so difficult to confuse the layman with technical jargon - the layman always being so technically astute. Come on, there are dozens of ways in which the salesman could have spun a bad demonstration to alleviate the worries of the customer - maybe telling them that it's slow because it's running over the internet on a machine back at the office but it'll be quicker when it's installed locally, or that he's using an out of date version and the bugs aren't present in the new version, etc. - that's his job, and consumers shouldn't be made to suffer just because they had the misfortune of dealing with a particular proficient liar at the point of sale. I'm not a salesman but even I could come up with several plausible reasons to explain away a poor demonstration that the average consumer would buy. If this law didn't exist then it wouldn't be so reasonable to take these claims at face value and you'd expect them to explicitly request they be placed in the contract, and they'd be at fault if they failed to do so, but the fact is that the law does exist so it's entirely reasonable to take the claims at face value, knowing you have an established legal recourse if they turn out to be false. That's exactly why the law was formulated, to make such transactions more efficient without having to engage independent experts and legal representation every time you buy something.
Yay, higher prices for software. What, you expected a lower bug rate without any added cost? At least now you won't have the option to buy software of current quality at a discount; you'll only be able to get the finest (at a higher price).
Of course you'll have the option to buy lower quality software at a discount price, all that will change is that the sales guy can no longer lie and tell you that it's actually high quality software at a discount price. If you're happy to buy buggy software and pay less for it then he shouldn't need to mislead you in the first place, and if this market exists then the people writing buggy software will continue to do so - for many people "good enough" is worth the discount.
Giving benefit of doubt, you're being sarcastic i hope. Here's the classic reference, from 1955: http://en.wikipedia.org/wiki/Entores_Ltd_v_Miles_Far_East_Corporation Which actual findings are admirably geeky, relying as they do in "implied ACKs" (my phrase, which i think fits nicely, if you read the case) Which same also neatly renders silly your phrase: "presence in . . country by virtue of". Quite apart from personally disliking teleportation, the point fo the matter is the communication, not "presence". Lawyers, IMNSHO, the really good ones at least, i believe pioneered concepts of AI, way before Stanford got into it :-)
SoGA requires a consideration - that needn't be cash, it could be in the form of a service or the transfer of some other goods or chattels
I think there is some confusion between the requirements of a contract (of which consideration, which need not be money, is one element), and contracts to which SoGA applies (sales for "money consideration"). To fall under SoGA, amongst other things, there must be "money consideration", and so a service, or transfer of other goods (e.g. bartering) is insufficient.
So, no, cash is not required, since cash is a specific form of money, but non-money consideration is insufficient.
(Again, IAAL, but, this is not legal advice!)
Software was defined as "goods" long before this under the SGA. Nothing has come of it it except this (only Australia wants to differ), which is a good precent if you understand reasonableness. In a B2B transaction you can contract out the implied terms and warranties/representations of sale and defer to a sale contract. This protects the consumer. It's the sellers fault for promising the world and not giving it - if only they had an Entire Contract Clause and dis-applied the SGA
The perfect law to use when going after all the fake AV software companies.
I read this on the Register yesterday. The /. headline is wrong. The court *didn't* find the company liable for software defects, they found them liable for misselling the product; the customer relied on the claims made by the company and those claims were wrong. The software was not capable of doing the job the customer needed, but the company claimed that it was.
Please be aware that there is a difference between "free of bugs" and "useable for the intended purpose". This verdict is not new. If you sell a software for purpose "X" and afterwards it turns out that "X" cannot be reached due to limitations, you were always liable (at least here in germany). But several courts have ruled, that no complex software is 100% bug free. There are and will always be bugs. But the software must still be useable for the intended purpose.
CU, Martin
How could there be a money consideration without payment? You says its questionable, but surely "money consideration" must require a payment.
Probably - and it would make sense - but, I wasn't sufficiently sure that this was the case to make an absolute statment.
Another thing with open source, is you often do not download it from the author. ... if there is a transfer of property, who is it from? The author or the download mirror? If its a torrent, does that change anything?
This is another clear example of why SoGA does not sit comfortably with software, being, as it is, phrased in terms of "transfer of property". In a non-digital world, equating notions of property and ownership is relatively straightforward; when one transfers a box of eggs to another under a contract of sale, the intention is to transfer the ownership of that box of eggs, and so physical transfer mimics (to an extent - since title may not pass with delivery) the transfer of ownership - a transfer of possession without a transfer of ownership/title is generally considered a loan, just as retention of possession without ownership under a right is generally considered a lien.
Of course, this does not work well in a digital world, where many distributors are wishing to avoid a transfer of ownership. However, to my mind, the mechanism used for the transfer is still largely irrelevant - the fact that you might buy some eggs from me, and I choose to deliver them to you myself, or else deliver them to DHL, which delivers them to you, or else I give them, does not affect the transfer of title; this passes from me to you, even though I use an intermediary to effect the transfer of possession.
When one looks at the GPL, for example, there is no right to sub-license; the owner of a particular copyright work within a GPL'd file licences that work directly to the recipient, even if there are many layers of transfer in between. No matter what transfer mechanism is used, the licence is still granted from the owner to the eventual recipient, directly.
i really dont understand how you can write "this software is sold as is. no liability, no warranty, blah blah" when you sell it. maybe now somebody will sue m$ and suckers like me who are still stuck with crappy vista will get a free upgrade to win 7. in the meantime, i have to run kde on ubuntu with crappy webcam and no fingerprint no hdd motion sensor support. and yeah, jerky audio from time to time.
but still lots better/faster than vista, for which i stupidly paid good money.
Wealth is the gift that keeps on giving.
This is not the horror story which the headline and TFS seem to imply. The key points are:
* The software company (Red Sky) sold the software without letting the customer (Kingsway) try it or read any operating documents
* Kingsway thus bought it based *solely* on the sales advice of Red Sky
* When the software failed to live up Red Sky's promise, Kingsway tried to get their money back
* Red Sky tried to rely on a clause in its standard T&C which said that the only remedy available to customers was to make use of its maintenance and support functions. Thus it said that Kingsway could not sue it for a refund
* The High Court disagreed and said that Red Sky's clause was unfair under the Unfair Contract Terms Act. It said that this Act applied and protected Kingsway because negotiations between the companies had been one-sided on the issue of liability
From TFA:
"Red Sky's' standard terms were predicated on the fact that a prospective customer would investigate Entirety [the software] and make up its own mind whether or not to purchase based on demonstrations and the Operating Documents which Red Sky had previously supplied," said the ruling. "It did not apply to circumstances in which the customer relied on Red Sky's' advice in deciding to purchase Entirety"
In brief: If you are going to make promises about your unseen and untested product, you cannot prohibit the customer from getting a refund if it turns out you misled/misinformed them.
Seems fair to me and it has no real issues for software vendors or OSS people unless they also allow their sales people to make promises that the development team cannot support
You know, I know a few Chinese folk, including the owner of a couple of factories, and they complain that the American buyers don't want the slightly higher priced quality goods but always buy the lowest priced crap they also put out. Tariffs won't solve that issue at all because it just increases the prices for all of their stuff. Apart from that, if you institute tariffs the next step would be for China to retaliate likewise or demand compensation from the WTO.
But perhaps you might want to take this up with your local store-owner? It seems they're best positioned to solve this. Because surely, it can't be that the fact you buy the cheapest stuff you can find, has anything to do with the fact you end up with crap?
Therefore, by the (faulty) logic you're using, you're just a cow with a keyboard - osu-neko (2604)
I'd love the see that advertisement...
Because if it advertizes something besides "juggling ones and zeroes", you're not going to get out of it when the lawsuit comes around.
Therefore, by the (faulty) logic you're using, you're just a cow with a keyboard - osu-neko (2604)
Yes, and every hobbyist now has to worry about being sued when their code breaks.
If you are a hobbyist, you should not sell your software. Leave it for the pros
only this single error in written english pisses me off. i don't care about any other things like coz, 2, 4, its/it's. please please everyone, no apostrophe when writing plurals!
Wealth is the gift that keeps on giving.
But even free software should do what it claims. Ofcourse, for free software there is (a) the possibility to evaluate the software free of charge and (b) no pressure to advertize it being fit for some purpose it can't meet. So it would be hard to actually get a lawsuit going on this one.
However, I think for malware and software containg trojans this ruling provides interesting possibilities for civil lawsuits.
Therefore, by the (faulty) logic you're using, you're just a cow with a keyboard - osu-neko (2604)
Hi, I'm a hobbyist, I make hammers and saws, except I'm not very good at this hobby, but I give the hammers and saws away for free so when they break and maim people I'm in the clear because I didn't charge them anything?
1) There was a sale of goods, and therefore an implied contract term that the goods were fit for purpose.
In the case of hobbyist software 1) there is no sale of goods and no contract (an open source license is not a contract)
What I'm not clear on is whether this changes the status of licences. The last I read, licences alone were not goods. My brief scan of the judgement made me think there WERE goods (and support and training) involved in this contract as well as the licence. So I think there's a fourth reason to think that OSS might not be affected, even if it was sold: no goods are involved, only licences. I certainly wouldn't want to assume I could sue an off-the-shelf software supplier if its product was unusable.
Is there a lawyer here who knows the status of licences better than me?
I don't have any particular feeling as to whether it's "okay" or not. Simply because that's the way it is and always will be. Status quo is, salespeople try to cloud your mind to make their products look good. It's their job. And it's yours to see past that.
Newspeak is so common in the IT field that whatever the marketing guy tells you is irrelevant. Visit any website of big software vendors (especially in the area of enterprise software). Their whole sites are filled with fucking nonsense that doesn't tell you one bit what the software actually does. Probably because the marketing guys have no clue themselves.
In the end, be it enterprise software, video games or small business applications, if you buy without testing for your exact purposes yourself, you're unfit to make these decisions.
Yes, and every hobbyist now has to worry about being sued when their code breaks.
If you are a hobbyist, you should not sell your software. Leave it for the pros
only this single error in written english pisses me off. i don't care about any other things like coz, 2, 4, its/it's. please please everyone, no apostrophe when writing plurals!
I'll try to remember that, it's really a problem to write perfectly one language when you speak 4, but thanks. Meanwhile you could capitalize the first word of every sentence, proper nouns and "I" (english, i, please) ;)
Yes, and every hobbyist now has to worry about being sued when their code breaks.
If you are a hobbyist, you should not sell your software. Leave it for the pros
only this single error in written english pisses me off. i don't care about any other things like coz, 2, 4, its/it's. please please everyone, no apostrophe when writing plurals!
I'll try to remember that, it's really a problem to write perfectly one language when you speak 4, but thanks. Meanwhile you could capitalize the first word of every sentence, proper nouns and "I" (english, i, please) ;)
hey! i said i didn't care about anything else. :)
Wealth is the gift that keeps on giving.
No, but I work in IT and know how to ensure that I am not being misled. Now look at it the other way round, you call a hotel to book a room, they tell you it will be 5 star, have a TV, en-suite, king size bed, etc. etc. Now when you get to the hotel to use the facility, it's nothing like you were told - is it your fault for not checking (in person) that the room is suitable *before you turn up to use it*?
Those are well-defined features that leave little wiggle-room. It's pretty hard for a hotel room, bed and TV to be unfit for the intended purposes.
Plus, that's a bad example. A more fitting one would be buying a house or car fleet; something that costs a lot, lasts for years if not decades and is vital to your operation. Would you buy any of those without giving it a thorough inspection?
Say you buy something in a shop. If the shop says "X is broken", then obviously you have no rights when it turns out X is broken, and (depending on the product) it could break further and still be "fit for purpose". If a shop instead said "The product is sold as is, I have no responsibility if X breaks", such a term would be invalid under the Sale of Goods Act or similar, whether it was in fine print or they shouted it at you. A shop would not sell a completely working product and say "X is broken" to reduce their liability, as that would lose sales.
Software is different, as we do want people to be able to sell alpha software "as is" under certain circumstances (or am I wrong?). If you buy Microsoft Office (directly from Microsoft), we want them to be held responsible if it isn't fit for purpose. If Microsoft included a term simply saying "We are not held responsible if it breaks", that would be invalid. However what if Microsoft said "This is testing software that will have bugs, we are not held responsible if it breaks". We do not want that term to be valid if they were selling Microsoft Office, however we would want it to be valid if they were (hypothetically) selling Microsoft Office Alpha Test Version.
I imagine the correct balance is to judge how obvious it was made that the product was a test version. However this goes against my normal instinct that "fine print" is as legally valid as "regular print" in most circumstances.
The other issue being raised is people selling OSS software on discs. I do not think this is an issue - make it clear that you can get the software for free from $website and that you are selling the service of giving the buyer the software, something that cannot be argued with non-free software.
not really. fta -the judge is pretty clear that the reason for the ruling was that the software company basically misrepresented what the software could do, and also didn't let the hotel test it or read docs, etc.
for this reason, he threw out the clause which says 'you pick the software, it's your problem if it doesn't work'
--- ...
"The exclusions in clause 10.2 [of the terms and conditions] only applied where the Operating Documents as defined in Clause 1.1.6 were supplied to the customer before the contract was signed," it said. "In this case such documents were not supplied by Red Sky to Kingsway. Therefore, Clause 10.2 and the exclusions derived there from did not apply."
Tom Greenbank of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the case underlines to software publishers that they need to be careful how they sell their products and make sure their processes are precise if they want to claim that the buyer is responsible for choosing the product.
---
so a hobbyist who sells some software in an open way (honest, docs, trials, etc) has nothing to fear here.
of course, if their software doesn't work then the user can get a refund. But I can't see any reasonable objection to that.
What happened here is that the company blatantly misrepresented what their software could do. Sold it, knowing it wouldn't work. Didn't provide docs, or a method for the user to try it. Then argued that the hotel was responsible for testing that the software was apropriate for them. Then got pissy when the hotel complained that they'd been sold a lemon.
VLC Remote for iPhone and Android
Great. Which company is it? :-)
Seriously. This is quite basic, and common to all sorts of goods. In the US, any state that uses the Uniform Commercial Code (which is almost all of them) has something similar. Basically any good sold must be guaranteed to be fit for the purpose that it is sold. Thus if you sell a battery, and that battery is advertised as being able to produce a certain voltage to power devices, it has to do so. If you sell a dead battery, a customer can return it for a refund as the battery wasn't fit for the purpose it was sold.
Same deal applies to software. If you sell software claiming that it is tax software, but it turns out to just be a flash game, the customer can return it. Goods must perform as advertised more or less. If you say "This is useful for purpose X," it has to be useful for that.
HOWEVER, that says nothing about specific performance. If the item isn't up to the consumer's standards, well that's something different. If a company sells you a DVD player, it needs to play DVDs. However if you feel that the image quality of said DVD player isn't what you'd like, well that isn't their problem. Likewise a product does not have to be free from any and all defects, if those defects don't stop it from doing what it was marketed to do.
So that's really what it comes down to, and there's nothing new here. This doesn't say software has to be bug free, just that it has to do what it is sold to do. Only way a company might get in trouble is if they specifically marketed it as free from all bugs. However even then, maybe not. An awful lot of bugs come from misuse of software. When there's a bug that a worm exploits to get in to the system, that's misuse of the software. It is used in a way not intended to be used, and specifically designed to cause problems. As such, a company generally isn't liable for that.
I know many of the /. types (who've obviously never worked on and debugged a large project) salivate at the idea of requiring perfect performance, but that isn't what is being said here, nor is it applied in other markets. Cars have many known flaws. If you drive a car at its maximum speed in to a solid wall, you will die of acceleration trauma, even if you use all the safety equipment. However the manufacturers are not liable for that because such a thing would be a gross misuse of their product. It is not marketed to be safe under those circumstances, and is not intended to be used in such a way.
Windows 7 is Vista; they have the same kernel.
I'm surprised you find Ubuntu with "jerky audio" and "crappy webcam" is better than Vista - all of those work out of the box on Vista laptops. Then again, it seems invoking "m$" is still worth a +1, Insightful around here.
I'm thinking you just shouldn't be allowed near computers considering that you couldn't get Vista or Ubuntu working.
DATABASE WOW WOW
You learn something new every day - I remember being taught that the Sale of Goods Act applied only to purchases made by consumers - i.e. that it was purely consumer protection legislation. Business to business sales were not covered (usual breach of contract litigation would, of course, still be possible).
Just googled it, and it does appear that I was taught wrong - it does apply to business purchases.
Sigs are so 1990s. No way would I be seen dead with one.
Windows 7 is Vista; they have the same kernel.
I'm surprised you find Ubuntu with "jerky audio" and "crappy webcam" is better than Vista - all of those work out of the box on Vista laptops. Then again, it seems invoking "m$" is still worth a +1, Insightful around here.
I'm thinking you just shouldn't be allowed near computers considering that you couldn't get Vista or Ubuntu working.
it is not my job to get vista working if i paid to get it pre-installed. i've gotten ubuntu to work after a lot of work to find the correct nvidia drivers. the other things like fingerprint, motion sensor, etc don't work because hp did not create drivers. this is why i said ubuntu is better. because it does everything it is designed to do. for example, in the time it takes vista to hibernate and come back, ubuntu can shut down completely and comeback THREE TIMES.
vista on the other hand loses wlan connections randomly, stops charging the battery and mysteriously turns itself off randomly. i'd take crappy audio over any of that.
and i think 'm$' is the the most wonderfully accurate/succinct description of micro$oft ever.
Wealth is the gift that keeps on giving.
Frankly, the more "enterprise" the software is, the less pity I have for the customer(and yes, I have dealt with some pretty ghastly "enterprise" software, this isn't just theoretical sniping from the outside).
If Joe Consumer buys a shiny box-o-shrinkwrap, he basically has zero power. Most stores won't do anything more than replacement-in-kind, for physical defects in the medium or accompanying accessories, no returns. The inevitable nasty EULA will be hiding inside the shrinkwrap that confirms your acceptance of it. His software may (typically) be fairly cheap; but he has absolutely fuck-all power of redress if it doesn't work(or if the online component changes without notice in 3 months, or a mandatory update breaks things, or whatever).
If you are buying "enterprise" software, though, you are probably talking an individual contract(and a real contract, with suits and lawyers on both sides, not some contract of adhesion crap), contact with the vendor, and maybe even a stack of customizations. Why, pray tell, did you let the vendor get away with delivering whatever they wanted, without any assurance that it will do what they said it would? Why didn't the contract specify scary penalties if they fuck up?
Consumer protection law basically exists as a form of aggregate power to protect those who have basically none during each of the transactions they make day to day(and, secondarily, to assist the sellers, by providing a more uniform commercial environment, where certain standards are universal.) However, the closer in power to one another the buyer and the seller are, the less obviously necessary or desirable it is. Enterprises are big boys, why do they need the state to write their contracts for them? In the case of software, there is a lot of excellent "as-is, don't sue me" stuff floating around. It would hardly be helpful to open everybody who, as a service to others, gives anon read access to their CVS, to product defect lawsuits. If you want to sell it in shiny boxes at Gamestop or Office Depot, sure, the customer had better be able to at least return it. If it is "enterprise" software, the state should certainly hold both parties to their sides of the deal, per contract law; but surely they can figure it out between themselves.
I live in the UK and I have successfully returned opened software products for a refund multiple times. The process is simple, you bring the software back to the store you say it doesn't work correctly and you uter the magic words "Not Fit For Purpose". If they still try and stall you, you uter then even more powerfull words "Then I'll have to complain to Trading Standards".
The no-return policies are cunning lies to deceive ignorant customers: your right to return a product within the warranty time if it is not fit for purpose cannot be taken away. What they actually are saying is that you can return an unopened product for any reason within X time (in other words, an extra right) but they word it in such a way that people tend to interpret it as "you cannot return an opened product at all". In fact, if they explicitly stated that you cannot return an opened product at all, they would be sued by Trading Standards.
[IANAL but once upon a time I did trade online as a business so I read all the rules]
This is also why I don't buy software online, especially from companies not based in the UK - if you have to reach them by e-mail or phone they can stall you as long as they wish (or until you loose your patience and take them to Small Claims Court), and if based outside the UK they're pretty much out of your reach for redress.
mod parent up
is there not implied contract between a user and open source software distributor if exaggerated claims are made about the software? I'm thinking carlille v smokeball co although that's a bit of a leap if the distribution of OSS, as you say, isn't a sale of goods/services. At least in carlille, something was purchased based on claims made by the manufacturer allbeit, pre-SoGA.
money consideration - I was always under the impression that payment in money doesn't have to change hands for SoGA s14 still to apply. Although, applying other value "payment" argument to open Source would be pretty difficult indeed, e.g. contribution to fix other bugs and so on.
with open source, the 'consideration' could be an expectation that some of the user base contribute code fixes, report errors, respond to queries on a forum and so on.
Actually this ruling doesn't not even imply that the software has to be fit for purpose. the ruling says that if you want a liability exclusion clause in the contract of sale then you have to ensure that the customer has been given the opportunity to scrutinise the software to test if it is fit for their purpose. If given this opportunity they do not properly scrutinise it and then find out later that it is not fit for their purpose the software company is not liable. In this case the software was not demonstrated to the purchaser and they were instead given promises about its fitness.
Hey guys! Don't sell more than we can provide!
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
A typical OSS license only involves copyright, and related issues such as redistribution and making changes.
However many OSS software is "sold" with all kinds of claims on what it can do. Have a look at the Firefox home page for example:
Meet the World’s Best Browser With security, stability, speed and much more, Firefox is made for the way you use the Web.
That's what it starts with. I would consider this plain advertising, and as such fall under relevant advertising laws for a start.
Now indeed when I download this software I do not sign a sales contract with the Mozilla Foundation, however I do have certain expectations regarding fitness for purpose and so. Bugs I expect that there are in it, I also expect that the writer will for starters do their best to write bug-free software, and when bugs are found that they will take reasonable action to solve them. And the bigger the project the higher those expectations.
An interesting case would become if someone loses say bank details due to a security leak in Mozilla or the underlying OS (thinking of Microsoft's Windows mainly of course). Especially if that bug is known and not acted upon.
Can anyone hold the e.g. Mozilla Foundation liable for such issues? Even when no money changed hands? They do have quite bold claims on their home page, obviously encouraging you to use their product.
is there not implied contract between a user and open source software distributor if exaggerated claims are made about the software? I'm thinking carlille v smokeball co although that's a bit of a leap if the distribution of OSS, as you say, isn't a sale of goods/services. At least in carlille, something was purchased based on claims made by the manufacturer allbeit, pre-SoGA.
So, Carlill deals with the principle as to whether a statement, if it is sufficiently precise and capable of acceptance, can amount to an offer, rather than invitation to treat, which is accepted by someone acting in accordance with the statements. The breach of contract, in the case, was that the smoke ball did not live up to the marketing bumpf along with (what was found to be) the offer.
The formation of the contract, and the ensuing breach of the contract, are two different things, and Carlill really relates to the former. To that end, merely exaggerating the functionality of one's product does not necessarily give rise to a contract, but rather than, where there is a contract, claims made in marketing may be considered terms of that contract. The particular point in Carlill was that the marketing spiel was one of terms, through virtue of it being part of the offer; under SoGA, marketing spiel might be considered a term where the sale is one "by description".
I was always under the impression that payment in money doesn't have to change hands for SoGA s14 still to apply.
You may well be aware of a case of which I'm not; I'm not a "contract lawyer" :)
Although, applying other value "payment" argument to open Source would be pretty difficult indeed, e.g. contribution to fix other bugs and so on.
It depends on how far you want to go; you seem to have some English law knowledge, so, if it's of interest, you might like to wander through the various cases dealing with consideration, and the different ways consideration can arise. However, rather than looking for the situations in which there might or might not be consideration for the purposes of SoGA, one would need to have consideration for there even to be a contract; without a contract, there is no SoGA protection- and a licence requires no consideration, since one need not accept a licence, or, indeed, even be aware of it, under English law (I am not sure about other jurisdictions), since a licence is a bare permission, absent which the act in question is a tort. (For example, I can say "You may use this paragraph in your essay without attributing it to me", and, you need not accept it, since it is a bare permission. Without my permission, doing that act would amount to an infringement of my copyright, whereas, with my permission, it is not.)
Similarly, the rules of consideration have weakened / changed considerably since the days of Stilk v Myrick, with Williams v. Roffey perhaps being the best example of this - that "obviation of disbenefit" is good consideration, even though the builder was already contractually entitled to the performance of his sub-contractor.
However, one needs to get over the hurdle that, for SoGA to apply, there needs to be a contract, and, for there to be a contract, there needs to be consideration. On the basis, then, that SoGA, since it applies to contracts, already has a requirement of consideration, a statement that it applies where there is "money consideration", would seem to refine the consideration which is valid for the purposes of SoGA, which, to my mind, means that consideration in the wider sense is not relevant, and that it does, indeed, need to be money. (An exchange of property might be "money's worth", but, it is still not "money".)
But, as I say - I am not a "contract lawyer", and my contract law may well be rusty.
Was this guy wearing a powdered wig while rendering this judgement? Unless the software developers were wearing hats with three corners, I can't take this seriously.
I think you've missed the point. Engineering software in general, including the stuff with a $4000 per seat per year maintenance contract, comes with a EULA that basically says the software provider is not liable for the results from that software.
Even if it is used in accordance with the help manual by trained users.
Even if the problem is directly caused by a fault in the software.
I would consider it reasonable if cases like Sony's root kit fiasco would be punishable under computer crime laws, like gaining unauthorised access to a computer.
In that case: when someone wants to play a music CD on a computer he does not expect it to start running any kind of software on that computer. If it does through the auto-start function, then it should immediately show itself to the user, and tell exactly what it intends to install, and not install anything without any kind of further user interaction. Anything less (silently starting, installing components unannounced, etc) I would consider "unauthorised access".
The failing DRM would IMHO fall under the "broken, please refund" category, as the software/game absolutely doesn't work as advertised in that case. And if shop refuses the return due top open packing, maybe small claims courts are a suitable avenue.
That was the point of the summary yes, but the thread I was replying to was discussing free vs paid software.
which is totally what she said
Arguably, even if you charged a fee for the use of your software, the disclaimer that it might or might not work could be enough to protect you
This is why you charge for support, and not for the actual product.
Be careful what you wish for. You may get it. You'll get less-functional software at greatly increased prices.
Yay, higher prices for software.
Because software vendors don't know how to calculate demand-curve pricing right now, and this will give them incentive to learn?
You seem to be under the mistaken impression that software companies aren't already pricing their software at the maximal rate of return.
I'm with you on much of that, but just wanted to pick up on this point:
The failing DRM would IMHO fall under the "broken, please refund" category, as the software/game absolutely doesn't work as advertised in that case.
It's not the original purchase cost I'm so worried about in the case of dubious copy protection mechanisms, as I suspect you would have ways to get that back anyway if, say, the software wouldn't activate. What interests me in light of this case is the consequences if installing business software on a work machine rendered the PC unusable because the accompanying malware corrupted Windows, damaged the data in the boot sector, etc.
I'm particularly aware of this because not so long ago I switched to freelance work, which means that working time very much is money to me now. The thing that makes me wary of so much modern business software isn't the cost of buying it, which is a business expense I would incur anyway, it's the unknown losses due to downtime if all this activation and DRM technology somehow takes out an essential PC that I need to work on a contract.
My perception from reading various reports on the Web is that most of the time, the big companies do get it right, but if you're the unlucky one whose system is a bit unusual or whose product key some pirate clones, then there's a good chance you'll be hung out to dry. I would feel much better about investing in high-end software if I knew that I would have grounds for compensation if my business was interrupted because the attached malware went wrong under such circumstances.
What you say is all very true, but the problem is that we don't have engineers in software. And that doesn't just mean the title, it means the laws that require a software product to have been vetted by an engineer.
If I build something, I must have my drawings vetted. The government won't allow me to start construction until someone has signed of on it. And this means that the law ensures that highly paid engineers are responsible for quality.
In software development, a lot is done by a 18 yr old who works for a tenner or less an hour. Go ahead, try to find a freelance sites for engineers offering low low rates. Now do that for software development.
Constant cost cutting has made software development an exercise in "it worked for me".
While I find this story to be an intresting development I am fairly sure the company that bought this software went for the lowest bidder. So they basically are claiming that this cheap 10 cent hamburger they bought is not in fact made from the finest parts of the cow. Gosh. How shocking!
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
His Honour Judge Toulmin also said that the software was not up to the tasks that Kingsway needed to use it for, and which Red Sky should have known were part of Kingsway's needs when buying the product.
This isn't bugs, this is the software doesn't have the features claimed. You get a product demo and think it's going to be awesome, install it, and then find out it doesn't do what you need it to do. Think SAP. I'd bet if you have a horribly unusable interface but it is sufficiently documented so you can make it do something, that's no issue. If it simply doesn't have features you were led to believe it had, that's the issue.
The same rule would probably cover defects which prevent the software from functioning, but if it's in the reporting or other rarely used modules you'd still be able to use the product.
The GPL license includes a warranty disclaimer, though.
There is no salesman making unrealistic promises to the customer.
Ya, sure there can be. If someone writes a pice of crap and claims (maybe on the crap.org website) that it will do X and Y and Z, or that it's a replacement for a well-known commercial product (not that I'm thinking of GIMP or OpenOrifice or anything else that claims to be a substiture for a brand-leader here) and it doesn't do those things - or does them badly or only in part then that counts as an unrealistic promise.
From a legal point of view, they may be able to get away with it, but froma moral or professional standpoint it's still inexcusable. The amount of time I've wasted trying to get badly written, buggy, poorly documented, mispeading, out-of-date, incompatible or uncompilable open-source / free software to work is massive. There are several FOSS projects where I have spent more time at my hourly rate trying to get the crap working, than the full-price commercial alternatives have cost. When you charge for your time, no software is free.
politicians are like babies' nappies: they should both be changed regularly and for the same reasons
I disagree. If a vendor tells you their software is going to do something for you their word should be their bond. The idea that you need detailed contracts, SLAs, and a team of lawyers to get what you paid for is a testiment to the decline of honesty in our society. Should the courts be the one to enforce it? I lean towards no, but it's not right that your average business owner can be shafted in a number of ways in the course of just trying to run his operation. It used to be if you were in sales, and you lied about your products you weren't in sales for very long. Word got around, and folks would rather do business with someone who was trustworthy. Now days it's become the accepted norm, and everyone does it, but it doesn't make it right.
I don't believe in karma, I just call it like I see it.
The GPL license includes a warranty disclaimer, though.
It's a nice disclaimer, but given the current ruling I don't think you could get away with that if you delivered open-source software (say, Pentaho) and it didn't work for the purpose you said it would be good for. Remember, open source is not the same as free. Pentaho et al would certainly be liable if their software did not perform according to the claims they made.
Even for free software, I can think of a situation where someone might get sued for delivering free software that doesn't work. However, that is mostly theoretical.
In the main: if you just deliver normal software and don't make outrageous claims in order to sell the software, you are unlikely to face any trouble.
Therefore, by the (faulty) logic you're using, you're just a cow with a keyboard - osu-neko (2604)
Actually, Google maps is not free for a commercial product, it is quite expensive.
APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?
Thanks for the answers, very interesting stuff.
Paranoid disclaimer: I am a law student, not a lawyer, and I am in no way certain that what I'm saying below is true. You certainly should get yourself a real lawyer and not rely on anything I've written.
I don't know about UK law, but in the US, largely due to our federal system, the situation is quite complicated.
In the U.S., the law is inconsistent in a variety of ways: the 7th and 8th circuits have held that the licensing of software is different from the sale of a good. But this is a minority view in the federal courts. State law also muddies the issue. Many states have specifically amended their implementations of the Uniform Commercial Code (USS) (sort of the U.S. equivalent of the UK's Sale of Goods Act) to specifically define licensed software as a good. Other states (so far, IIRC, only VA and MD) have adopted the Uniform Computer Information Transactions Act (UCITA) which is a law, analogous to the UCC, that is specially designed to cover things like software licensing. So, in these states you wouldn't say that a software license is a "good" but, for many purposes, the UCITA might impose analogous requirements. (Though, in many cases, it might not; the UCITA is widely criticized for being anti-consumer in ways the UCC is not.) In other jurisdictions, I imagine, a great deal on uncertainty remains.
caritj.org
You're more than welcome.
I don't think such laws will apply if a hobbyist gives away his program for free... It's only when something has been sold (note the first word in "Sale of Goods Act 1979") that this applies...
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I would say it's a bit of both worlds, a bit of A and a bit of B.
A. From the coding side of things, there really are a lot of employed programmers who just aren't capable of developing quality software. Even without tight deadlines, some people just shouldn't be in the business of writing software. I suppose you could blame QA or managers for allowing such code to be acceptable.
B. By "how software is sold and marketed", I assume you're referring to the practice of companies purposely leaving in bugs or incomplete features in order to generate additional revenue from the inevitable support requests and contract work required for the company to be able to patch the problems. If so, you're absolutely right.
Agreed...
The software industry has it FAR too easy, they get away with things that you couldn't even dream of in any other industry...
Selling a product that cost nothing to duplicate, once your initial costs are recovered its 100% profit from there on out.
Each product is a minor revision of the last, cuts that initial cost down massively.
Selling products with absolutely no warranty.
Imposing often extremely consumer-hostile terms on the customer post-sale through an EULA.
Implementing "features" which provide zero benefit to the customer, while often being detrimental to them (license enforcement, wga etc).
Being able to lock customers in by holding their data and networks to ransom with proprietary formats.
Being able to sell proprietary products with no alternative source or backup plan (see lockin) - businesses or governments wouldn't stand for this in any other market.
Someone needs to bring some sanity back to the software market, vendors are taking the piss right now.
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The time of the sale though is a question. With the exception of major corps like MS, how do you prove when they became aware of a security issue in their product? What about already distributed copies that have not yet been sold at retails...do you want them to do a recall on all of those everytime there is a flaw.
Say some company is notified that they product has a security flaw. They now have to stop all sales online or otherwise until that product is patched. The flaw maybe based on a library the product depends on in which case the company would have to take on development of that library to fix the issue before the product is released. What about in the case of GPL software? Oh that's right they get a free pass...
Probably not, because a contract has to provide something to both sides...
Mozilla do not directly benefit from you downloading and using firefox.
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Open source software even has motive *not* to over state its capabilities. Excessive/false advertising would result in lots of unhappy users complaining to the developers which is not what they want. Most OSS developers would rather attract competent users or fellow developers who can actually help them improve the software rather than becoming a support burden.
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They probably have enough high-priced lawyers to fight a suit like this, but I wonder if this could lead to a nice big class-action lawsuit when they release buggy fricking discs of sh** that don't work properly for the first 6-12 months (and then get some bugfixes so they work somewhat better just before they're replaced by the next version POS with more bugs).
If you didn't sell it you have no problems - this is just the same old, very good piece of consumer law that says you can't fraudulently sell goods. You can't LIE about what the thing does. You can't sell me an old plasma TV and tell me it's HD if it's not HD. .. that's fraud. You can't sell me a toaster that doesn't toast bread - that's fraudulent. Things need to be fit for the purposes sold. THis is to keep salesmen honest - because the flip-side of hte coin is that all sales are generallly final (in-store policies generally accept returns these days everywhere, but that's not because they were required by law, that's marketing strategy).
I have the right to sell you a toaster and I didn't lie to you about it's capabilities before the sale, and as long as it actually works when you unbox it, our business is generally done. I can count my sale as profit and don't have to accept any kind of return from you.
please everyone, no apostrophe when writing plurals!
But "pro" is a contraction of "professional" and in English we generally use an apostrophe to indicate a contraction when the contracted part is internal to the word ("can't", "won't") but not when it is at the tail of the word ("pro", "doc", "prof").
So in the plural of a tail-contraction, the use of an apostrophe indicates the contraction, not the possessive, as adding the "s" makes it an internal contraction.
Ergo, your complaint is groundless, and your ignorance of English is strongly suggested by your inability or unwillingness to care about any of the other manifold conventions that make the language such a baroque delight.
Blasphemy is a human right. Blasphemophobia kills.
It's free... no money exchanged hands.. no purchase, no right to any damages.
There might be a convoluted case in there somewhere - but it's nothing like the parent article - which is basically standard fit-for-purposes-sold law being applied. Selling something that dosn't do what you say it does is fraud.
Yes they do. About 85% of Mozilla's revenue comes directly from Google, via a contract which makes Google the default web search on Firefox. The only reason they get this revenue is because of their userbase. Mozilla do directly benefit because of people using Firefox, by well over $50 million annually.
Indeed complicated... but if I buy a box with software in it in the store, and you, the sales guy, tell me it will do X, and it really WONT do X, no EULA should protect you - the software vendor is probably fine - but if the store selling the box of software LIED about it's capabilities to make the sale - that's fraudulent, and illegal in most places. In Canada, for instance, you'd have to accept a return and give a FULL refund if the product was not fit for the purposes sold.
Yes - exactly. The "Return unopened goods at any time" is a marketing tool (and a good one for the consumer) - but not something they are required to do by law. That policy has aboslutely nothing to do with the "fit for purposes sold" legal end of things - and the two are often mixed up at big box stores when people return broken things.
The store would be free to say "all sales are final" and not accept returns (other than broken items) - they do that in many stores here where I live - but they also unpack and test most electronic stuff before you leave the store to avoid dealing with broken returns, which could be fraudulent (and really saves everyone time and money in the long run)
My clean Vista64 installation was usable 15 seconds after boot... now it's longer (about 25) because I've installed loads of crap and not cleaned up my startup applications recently. One of the problems with pre-installs is the amount of crap that is installed with the OS - this partially funds cheaper prices, so if you don't want it, buy an OS seperately. Something may be slightly awry with your Vista installation if it takes that long to return.
I did have problems though - Vista borked at my nVidia motherboard chipset and more than 2Gb of RAM (BSOD reboot crash during install)... it's a known bug, but it was a pain trying to find out what was causing it. I installed with 2gb, installed the hotfix, then stuck the other 2gb stick back in, and it's worked (basically) perfectly ever since.
WIth some fancy parsing of words, this ruling *might* pertain to OSS, in cases where a support contract is signed with a vendor. Let's say that Suse sells a contract to support 200 machines, and the people actually using the machines find some thing(s) that don't work as they expect. It may or may not matter that the particular use, or even the particular application was mentioned in the support contract.
I wouldn't say that it doesn't affect OSS - but I certainly can't say that it will, either. This is most definitely something to watch for.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
As long as you dot your is and cross your ts, I will.
My perception from reading various reports on the Web is that most of the time, the big companies do get it right
Tell that to purchasers of Settlers 7. _Huge_ numbers of people were unable to play it because of the DRM included failing... a crack came out soon after release, and pirated copies were not affected by the problem. I wonder how many of the legit purchasers returned it. I personally have only had real problems with one game - Football Manager 2009, and I swore then and there I would never buy another game that required online connectivity. Fortunately, FM2010 removed the crappy DRM and I bought it.
How could there be a money consideration without payment? You says its questionable, but surely "money consideration" must require a payment.
Mozilla gain monetary benefit (over $50,000,000) from having more firefox users because of their contract making Google the default search engine. By using Firefox, you are increasing Mozilla's revenue, albeit by a very small amount. Granted, _you_ are not giving them money directly, but someone else is because of your use.
Offtopic, really? Because that's what the OP is worried about, except instead of hammers and saws it's software and instead of maiming people the potential damages are harder to ascertain.
Granted, you can sell open source software, but I bet the vast majority of OSS is given away freely. It would therefore not count as a sale.
Quite right. It only applies to actual "sale". In this case the software was explicitly sold for a particular purpose. The quite reasonable assumption seems to be that once you actually take money for something you are guaranteeing that it's suitable. So of course, if I sell someone else's piece of GPL code, I'm accepting full responsibility for it being suitable. If I've used it substantially myself and found no problems I may well be happy to take this responsibility.
As an example, doesn't the GPL state that the software comes with no warranty? I'd think that would free the creators from liability issues with regards to bugs or functionality.
The software mentioned in the article came with a similar disclaimer. It's not something to rely on and certainly wouldn't cover the vendor if it was sold.
In the case of hobbyist software ...
1) there is no sale of goods and no contract (an open source license is not a contract)
An open source license is a contract. Purchasing a candy bar in a store involves a contract. (In Germany, it involves three contracts.)
The reason why free software is not subject to the conditions of this suit, is that one is primarily liable for returning the cost of the software purchased.
As there is no cost in the free product, one can evaluate its fitness without any risk. Typically, for a commercial product, one is not able to run any tests or evaluations of the software prior to purchase.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
If Joe Consumer buys a shiny box-o-shrinkwrap, he basically has zero power. Most stores won't do anything more than replacement-in-kind, for physical defects in the medium or accompanying accessories, no returns. The inevitable nasty EULA will be hiding inside the shrinkwrap that confirms your acceptance of it. His software may (typically) be fairly cheap; but he has absolutely fuck-all power of redress if it doesn't work(or if the online component changes without notice in 3 months, or a mandatory update breaks things, or whatever).
As mentioned previously in this thread, in the UK we do have recourse, though 99% of consumers do not know this. The sale of goods act requires that goods be fit for purpose, and if the goods are not, then the customer has the right of a full refund, _whatever_. This means that if you buy a buggy game you cannot play, you can go back to the shop and get a refund. "Not fit for purpose" is a magic phrase which may get you somewhere. If not, try "Trading standards". Consumers have _loads_ of rights in the UK that they do not know about.
Another example is distance selling regulations, which allow consumers to return a product bought from a company online, for any reason whatsoever, within 7 days, and get a refund. Unfortunately this does not apply to "audio or video recordings or computer software which were unsealed by the consumer" (thanks lobbyists), but it does apply to nearly everything else (perishables are another notable exception). Also, "The consumer is under no obligation to deliver the goods to the supplier except at the consumer's own premises and in pursuance of a written request by the supplier". Note this law applies to all hardware, and DOA excuses are not needed - you can just say you don't want it. You have an obligation to take reasonable care of the items until the seller collects them though, up until about 1 month.
I don't think that the consumer has too little rights in the UK, I think the consumer just doesn't know their rights. Personally I generally put bad purchases down to experience, though I've had few of them, and the ones I have had haven't been covered by law. I'm not getting screwed over by any big corporations - I try to milk their silly offers that they expect people to overuse and then hit clauses on.
this only really applies to companies selling off the shelf solutions with wild claims that they can't meet, and in that case it's got to be a good thing for everyone.
Won't someone PLEASE think of the poor marketers!
never thought about it like that! it is quite logical. but i've never seen this in any formal writing like newspapers, novels, etc. it is always without an apostrophe as far as i remember. thanks anyway for a new perspective.
Wealth is the gift that keeps on giving.
Sorry, I wasn't clear: I was referring to big companies in the business software world, such as Microsoft and Adobe. Certainly the games world has been suffering a rash of silly DRM-related failures recently, but alas, that sort of software is not a common sight on my work machines. :-)
to fix the wlan random disconnections, i have to reboot completely. not just toggling the wlan switch or logging out.
and to fix the 'plugged in, not charging' thing i have to shut down and take out the battery. then boot with only ac connected and then log in and wait for power management programs to load. then shut down. remove the ac supply. put in the battery and plug in the ac and then turn on again. yes, i need to reboot two times.
and then there was this bsod problem which is gone now. random bsods on boot. so system restore kicks in and overwrites all my files (even data and games!) changed since last successful boot. i swear i nearly went mad uninstalling EACH and EVERY driver and reinstalling them but no success. finally i gave up and called hp. they simply told me to reinstall windows and lose every config, program and data. thankfully that fixed the problem.
my vista also takes 25-30 seconds after passsword entry to be usable. don't you think that is a bit long?? ubuntu's total boot up time is about 30-35 seconds including the bios. win7 boot time is also similar to linux.
the bottom line is that i feel totally frustrated and ripped off.
Wealth is the gift that keeps on giving.
"doc" and "pro" and "ad" and "gym" are not contractions, they are clipped forms. no apostrophe in those.
IT/software shouldn't be treated any differently to any other industry. Most people don't have sufficient expertise to buy most things, which is why salespeople exist in the first place. Yes, they're going to present their product in the best possible light, but presenting a product in a good light is a different beast than misrepresenting its capabilities.
Performing a full-scale test of a single piece of software is often impractical. The only way to really see how it fares in your actual business is to deploy it and use it for your actual business, alongside your existing practice. That can be huge undertaking, especially if part of the deployment of the new software is to make significant changes to your business processes. What about problems that only manifest themselves over time? Do you have to run the application (or several, since there's probably a few candidates) for several years to prove that they don't become unusably slow once they have a bunch of real data in them? What vendors are going to let you trial their application for several years?
Of course salespeople have an incentive to lie, just as thieves have an incentive to steal, and people on trial for committing crimes have an incentive to lie. That's why we create laws in the first place - to provide a disincentive where there otherwise wouldn't be one (or an insufficient one). That way, when you ask a vendor if their software meets your requirements, you can take them on their word.
IMO the software industry is not held to account for its claims often enough, and this ruling won't do much to change that. So your cynicism is understandable. But just saying "it's always going to be like that" is I think a defeatist attitude, and we should instead be raising the bar of acceptable behaviour.
Yeah I agree.
Although it wouldn't stop Microsoft from putting out bad OS's time after time after time. They (MS) would claim its a "feature".
There's a big problem here reconciling the phrase "fit for purpose" and the other phrases used in the summary attributed to Toulmin, namely all the comparatives: increased revenue, increased occupancy, quicker check-in and check-out. These aren't purpose. Whether the system in question is quicker or better depends entirely on what you're comparing it to: what old system (if any) was in place. A poor system not fit for purpose might well perform better than the old one if the old one was even worse. LIkewise, a good system might not generate improvement in any of these areas if the system it is replacing was better (and perhaps more expensive).
When you're scammed you sue the scammer, you don't throw tariffs at his country. That makes no fucking sense.
Justice is the sheep getting arrested while an impartial judge declares the vote void.
If you are a hobbyist, you should not sell your software. Leave it for the pro's
I worked as an AP for many years with no 'meaningful' tertiary qualifications and started my programming as a hobbyist back in the days of 2650 and S-100. I worked with many people back then who would be called 'hobbyists' by self promoting professionals who aren't worthy to wash the majority of hobbyist's grubby feet. The one thing in any working situation we feared was the arrival of some gung-ho fresh out of Uni idiot with professional qualifications because they didn't have a fscking clue and felt that they where the solution to every IT problem that had evr existed. Hobbyists in garages could perform miracles before the professionals got involved. Ask the majority of IT professionals what JNZ means and they will most likely think it's a bank in Jordan.
Like many IT 'hobbyists' of that era I am glad to now be out of that scene completely living a minimalist life with my wife, dog, and pet chicken.
The new right fascists are bilingual. They speak English and Bullshit.
Why am I not surprised that a guy that chooses to denigrate 'hobbyists' on /. has to self aggrandize by saying he speaks four languages. What are they TRS-80 BASIC, GW-BASIC, Altair BASIC, and English?
The new right fascists are bilingual. They speak English and Bullshit.
Bear in mind that case you are thinking of was in the USA, I don't imagine UK courts would let them get away with a "punishment" like that. Of course all this case means is that Microsoft needs to be careful with its contracts, perhaps allowing a testing period where the customers can get out of it without charge if the customer deems it is not fit for purpose, then it becomes the customer's fault for not testing properly and not Microsoft's for mis-selling. This doesn't necessarily mean they will actually have to make it fit for purpose.
Actually according to the definition of "professional" if a hobbyist sells a copy of his software, he is no longer a hobbyist. He's a professional by definition:
2 a : participating for gain or livelihood in an activity or field of endeavor often engaged in by amateurs b : having a particular profession as a permanent career c : engaged in by persons receiving financial return
For someone so learned, I'd expect you to know the definition of such a common term since you are using it in a sentence (albeit abbreviated)
Don't kid yourself. It's the size of the regexp AND how you use it that counts.
Not only that, any OSS developer with any sense, includes something like this in his license agreement to reduce/eliminate his liability attack surface:
Warning: This software is not fit for any use or purpose. Use at your own risk.
I'm thinking a judge would laugh at anyone that tried to sue the developer with such a warning in his license/copyright notice.
Don't kid yourself. It's the size of the regexp AND how you use it that counts.
That's exactly what I said
No you said hobbyists shouldn't sell their software. "Shouldn't" has an entirely different meaning than "don't".
Your second post was nothing like your first.
Don't kid yourself. It's the size of the regexp AND how you use it that counts.