Declan asks if the liability rules surrounding computer software should be tightened: « the EULA is the slickest ‘Get out of jail free card’ I can think of in recent years » says a consultant quoted in the article.

It’s an issue that I feel is very important. As computers take a larger, more important, mainstream and legitimate place in society, will the industry be forced to mature and stand for itself? While Declan talks mostly about legislation, I was wondering about the feasibility of a professional order for programmers, which is another approach to address the same issues.

As a member of a professional order, I have mixed feelings. Yes, it is a layer of bureaucracy, it is often self serving, it is expensive, it adds inefficiencies.

On the other hand, it is there to protect the public (ok, the Bar in Quebec also has the mandate of defending the interests of it’s members, but that’s an exception), it imposes guidelines and rules, it implies deontology, it mandates acts that are reserved for the members of the order. It is socially the sign of an important profession which carries out a role that is considered important enough to be regulated and that can have a significant impact on third parties. In Quebec we have about 45 different professional orders.

So what to do? Limit liability exceptions (THE STUFF IN CAPS, as mandated by US law I believe) in EULAs? Arguably, in Quebec the Consumer Protection Act already does that, in the area of software sold to consumers. It has however never, to my knowledge, been used regarding any licence or any other contract related to software. Would specific legislation be needed? Declan is understandably congress-shy when it comes to law and technology given the previous legislative track record.

The problem is clear: we’re relying more and more on software that comes without the most basic guarantees. Should we refrain from relying on software or bear the consequences when we do so? Should we seek a legal remedy? Indeed the current legal and economical context do not seem to provide the necessary incentives to improve the situation, as it appears to me disruptions caused by software only increase as use, penetration and entrenchment of software in society increases.

Maybe we’ll reach a breaking point economical losses will make the (assumed) extra cost of providing higher quality software appear acceptable? Or would increase cost of licences simply translate directly in profits for vendor?

I can’t help but feel that while a software (and hardware) market where accountability would be greater would certainly be very different than what we currently know, it might be become a necessity. I’d be curious to know what ways you feel would be appropriate to achieve this accountability.

[Wired story via Furdlog]

Chris Barton: Microsoft security flaws trampling on consumer rights. The article’s conclusion I agree with:

For far too long users have accepted that software is different from other consumer products. And that the End User Licence Agreement you buy indemnifies the vendor against any claims, losses, or problems resulting from its use – even if the vendor knew about the problem before it sold the product. Our consumer protection law is supposed to stop that sort of cop-out.

It seems someone discovered Part VIII and the associated Tariffs (current and proposed) : Jay Currie at Tech Central station wrote a piece titled « Blame Canada » which I was kindly directed to by Frank Field and Matt Morse.

Well, without getting into too much details, while downloading music might be covered by the Tariff, as it does not specify any source or support requirements for the sound recording , uploading without a proper licence is not.

The actual provision in the Copyright Act is

Copying for Private Use

80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

(a) a musical work embodied in a sound recording,

(b) a performer’s performance of a musical work embodied in a sound recording, or

(c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.

As you can see, it’s a fairly narrow exception. One interesting thing though is that it is an accepted use: rights holders can’t assert a right over private copying. Hence it is not presented as defence to infringement. It is obviously not « expressly legal to share music » in Canada. And the Tariff does not make everyone happy either.

I must admit that since I use way way more CD-R for backup purposes than for copying music, I do feel I contribute more than my fair share to SOCAN and the CPCC. Therefore, the whole legitimizing file-sharing argument is tempting. But I’m also aware that my music tastes are very different from SOCAN’s pie sharing methods and I would very much prefer a better metric to evaluate right’s owners compensation if it becomes a de facto way to deal with file-sharing issues. After all this is about compensating the artists and my tastes over time do not follow Soundscan.

In the meantime, I feel like CDs are taxed like cigarettes or gas and that the « incumbent industry » is benefiting from a system that might otherwise foster a more diverse and rich offering than what this industry is ready to offer.

I am not generally opposed to compulsory licensing and/or tariffs but they are a delicate regularoty exercise that requires a clear policy vision and many checks and balances to be productive.

Another interesting nugget of Canadian copyright law is the Tariff 22. Controversial and challenged in court, it applies mainly to webcasting but might have an incidence on general filesharing.

[Update: Greplaw has a similar post]

Eben Moglen of the Free Software Foundation answers SCO’s claim about the GPL’s invalidity.

I still think that if the GPL was to be invalid, especially on the ground SCO claims, it would take with it in it’s fall a sizeable portion of the other proprietary EULAs and software distribution licences. Free software might find some surprising allies if this ever goes near a courtroom.

[via Slashdot]