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]
Food for throughts:
You’re ignoring the wish of the customer. A copy of Windows is 100$~300$. Given a copy of the software for 5000$ with guarantees, which one would the average home customer select?
Customers with specific up-time needs negotatiate for more than what the EULA asks. For example, 1 M$ per hour of unexpected down service assuming a 99.9… availability. This works out nicely, it forces the software vendor to ship a higher ‘quality’ solution however it also allows the software vendor to limit the use of the product by the customer. E.g. only specific hardware, drivers, software pieces.
This wouldn’t work for the general market. The white box PC with unknown components is the best example of looking for trouble.
Well I’m not ignoring the tastes of the consumers for low prices but I’m also aware that product liabilities in all other fields don’t prevent companies to find a way to make money. The building code might prevent the dirt cheap housing the consumer would prefer, yet it allows you to have decent rates for insurance and it tries to prevents that your property cause damage to third parties.
If there was no such thing as product liability and failure was the accepted norm, would people be complaining about the high costs of liability? Is Caveat Emptor the ideal doctrine? I think there should be norms regarding what is acceptable and what constitutes negligence or fault on the part of a software manufacturer or individual programmer.
It’s a matter of policy really. Yes there is an economic cost that will be passed on to the end user. But I’m wondering if were not approaching a point were that initial lower cost to the buyer/licensee is offset by the subsequent high costs to society in general.
I found some stats for 2001. http://www.toplayer.com/content/cm/news199.jsp and it seems there is a fairly wide margin to play in.
The issue of Open Source came up: wouldn’t this preclude non-commercial development? Maybe, but I could imagine a doctrine under which, since the end user has way more control and information on a product, having access to the code and all, that the burden of judging the fitness of the product might be partially shifted to the end user.
They risk setting up a big brother society which is a bad thing. Cool content and thanks for the tips, I’ll be adding them to my Blog real soon.