[net.legal] Boiler plate warranties - software isn't that reliable

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.