dmt@mtgzz.UUCP (d.m.tutelman) (08/28/85)
< followup to a message appended below > Would someone who really knows please take a crack at this. (Maybe we should merge net.micro and net.legal; this is the second folloup on a legal issue I've written this morning.) I thought that the "standard boilerplate" warranties weren't binding on a court, and that you COULD INDEED sue for damages. But you would have to convince the court (jury? judge?) that a reasonable person would naturally use the product in the way you did when you were damaged. Interpretation: if the court believes software is unreliable and shouldn't be trusted not to damage you, then the vendor is free. But if the court belives that software can be made reliable, and prudent people should trust it, and the vendor screwed up in this case (read "negligence"), then the vendor will have to pay. DISCLAIMER: I'm not a lawyer, just exercising freedom of ignorance (which, according to the law, is no excuse :-). Dave Tutelman Physical - AT&T Information Systems Holmdel, NJ 07733 Logical - ...ihnp4!mtuxo!mtgzz!dmt Audible - (201)-834-2895 -------------------------------------------------------- > In article <3199@pur-ee.UUCP> kk9w@pur-ee.UUCP (David Andersen) writes: > > > >The fact that someone wrote that they are not responsible does > >not mean that they are not responsible. If something breaks > >that a reasonable person thinks shouldnt, regardless of the > >boiler plate on the wrapper the manufacturer is liable for > >damages. If my software screws up and causes me a substantial > >loss, the software manufacturer could be liable for those > >damages, possibly to the tune of 3M$ or more. > > > You have got to be kidding here. Software just isn't that reliable. > Whatever warranty system you use, you have to take into account how it > will be in practice. All programs have bugs, and only massive redundancy > and great efforts can ensure software as safe. Big companies might be > able to afford it, but you will kill the little guy requiring liability > like this. > > Think about doctors and malpractice insurance. Think about car insurance. > Immense awards are driving up the price to the consumer. Some doctors > won't deliver babies anymore because of the price. > > Some liability and warranty may be in order, but this magnitude is too > much if you want the little guy to be able to produce software. Customers > who buy software must realize how complex a task writing it can be. > If I sell a C compiler, I could never possibly imagine all the different > kinds of code that might be written with it. There might be safe things > or there might be a traffic control system. If somebody writes a traffic > control system that causes a car crash because of a bug in my compiler, > am I liable? Or do I have to put, "this compiler is suitable for compiling > only safe applications software that doesn't control physical machinery" > in my advertising? > > -- > Brad Templeton, Looking Glass Software Ltd. - Waterloo, Ontario 519/884-7473
abm@ptsfa.UUCP (Al Margolis) (08/31/85)
> I thought that the "standard boilerplate" warranties weren't binding > on a court, and that you COULD INDEED sue for damages. But you would > have to convince the court (jury? judge?) that a reasonable person > would naturally use the product in the way you did when you were > damaged. This may be more semi-ignorant opinion but ... I understand that the fundamental problem with the shrink-wrap licence agreements is that it is questionable to assume that breaking the seal constitutes the "meeting of the minds" that is required for a contract to be binding (i.e.: if there is no mutual understanding and agreement, there is no legally binding contract). After that, there are all sorts of difficult issues concerning the degree of liability and validity of disclaimers. If there is no contract, the transaction generally falls under the Uniform Commercial Code (UCC) which is pretty even handed. If you aren't sure about the product (to the degree that a law suit is possible), you might think about *not* sending in your registration card, especially the ones that you sign, since that might be construed to indicate agreement. If you by a program for personal use, many states have consumer protection laws that give the purchase reasonable rights that cannot be abbrogated (sp?) [of course, you don't get the right to violate copyright laws]. I have a feeling this whole discussion is pretty silly, because the cost of the products and the difficulty of proving damages and liability makes it unlikely that any of us will end up in court, no matter what we do as consumers or developers (except go out of business if you botch your products too badly). The one semi- reasonable exception might be battles between mega-corporations, but I doubt even they could justify the court costs. BTW, if you wondering why licenses are so uniformly rotten, talk to you friendly compiler writer. I recently had the opportunity to see the sub-license agreement a developer has to sign to distribute run time libraries from a well known company's line of compilers. They require the developer to include all the disclaimer / non-warranty shrink-wrap verbiage -- of course you always have the option of writing your own run time libraries or doing the whole thing in assember ... Too much said already ... I'm not a lawyer, so this isn't legal (or good?) advice ... my employer doesn't usually listen to me, let alone have me represent him/it. Al Margolis Pacific Bell {dual, ihnp4} !ptsfa!abm
jchapman@watcgl.UUCP (john chapman) (09/10/85)
> > In article <3199@pur-ee.UUCP> kk9w@pur-ee.UUCP (David Andersen) writes: > > > > > >The fact that someone wrote that they are not responsible does > > >not mean that they are not responsible. If something breaks > > >that a reasonable person thinks shouldnt, regardless of the > > >boiler plate on the wrapper the manufacturer is liable for > > >damages. If my software screws up and causes me a substantial > > >loss, the software manufacturer could be liable for those > > >damages, possibly to the tune of 3M$ or more. > > > > > > You have got to be kidding here. Software just isn't that reliable. > > Whatever warranty system you use, you have to take into account how it > > will be in practice. All programs have bugs, and only massive redundancy > > and great efforts can ensure software as safe. Big companies might be > > able to afford it, but you will kill the little guy requiring liability > > like this. If so much of the software from small outfits wasn't complete trash you might have a point; disclaimers that the manufacturer doesn't warranty the program to do anything are bs as far as I as a consumer am concerned. > > > > Think about doctors and malpractice insurance. Think about car insurance. > > Immense awards are driving up the price to the consumer. Some doctors > > won't deliver babies anymore because of the price. > > > > Some liability and warranty may be in order, but this magnitude is too > > much if you want the little guy to be able to produce software. Customers > > who buy software must realize how complex a task writing it can be. > > If I sell a C compiler, I could never possibly imagine all the different > > kinds of code that might be written with it. There might be safe things These sorts of problems are one very good reason for the use of highly structured, strongly type checked languages like Pascal & Modula-II. The use of a well designed validation suite is also a good idea. You do not have to imagine all the possible applications programs to verify all the possible output constructs a well written and structured compiler will produce. There is also a question of degree: in ten years of using IBM mainframe software (I'm not particularily an IBM fan btw) I suffered because of a software bug. This has hardly been the case with micro software. > > or there might be a traffic control system. If somebody writes a traffic > > control system that causes a car crash because of a bug in my compiler, > > am I liable? Or do I have to put, "this compiler is suitable for compiling > > only safe applications software that doesn't control physical machinery" > > in my advertising? National Semiconductor puts just such a warning on some of their products ("not to be used for life support applications"). > > > > -- > > Brad Templeton, Looking Glass Software Ltd. - Waterloo, Ontario 519/884-7473 -- John Chapman ...!watmath!watcgl!jchapman Disclaimer : These are not the opinions of anyone but me and they may not even be mine.