in reply to Re: Re: OT: Software & Liability
in thread OT: Software & Liability

Have you tried arranging a meeting with Microsoft to change the contract a copy of Windows is licensed under? Did you have to check with your car manufacturer to make sure the car doesn't blow up when it hits 20km/h?

This was partly my point, though perhaps not clearly stated. All else equal, suppose that everyone actually had artificial hearts and that what we were buying from Microsoft was control software for these devicies. The dynamic for ridiculous EULA's would instantly change, because on average the stakes have just shot through the roof. The market would no longer be as willing to forgive the risks.

Granted, this can be abused in monopolistic environments, but I think people would also pay a hell of a lot more attention to what they were actually buying if it literally made their hearts tick.

The point of the other examples was illustrating that when you're in high-risk business you are less likely to accept foolish terms from a vendor. Regardless of your clout -- if there is a market there, competition will arise. Since you are (hopefully) aware of the nature of your risky endeavor, you go the extra mile to actually read a contract.

With operating systems for individuals today, there is not enough risk associated with purchasing an inferior product, therefore better options remain in a niche market. The market bears the ridiculous EULA's.

Matt

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Re(4): OT: Software & Liability
by cjf (Parson) on May 20, 2002 at 22:13 UTC

    Excellent points.

    The dynamic for ridiculous EULA's would instantly change, because on average the stakes have just shot through the roof. The market would no longer be as willing to forgive the risks.

    What if software manufacturers were protected under law and could not be found liable? A smart software company would talk big, say their product is the most safe but make no promises. Granted, as soon as one company steps forward and changes the agreement, the whole situation changes, but who would risk such liability?

    So what if no software vendor stepped forward? I'm betting there would be a lot more people calling for legislation to be passed. Sort of similar to the current situation, isn't it?

    With operating systems for individuals today, there is not enough risk associated with purchasing an inferior product

    This is debatable. Having your systems compromised can be very expensive. But what other options are there? How many companies are in a position to demand a different licensing agreement? Just because software is open source doesn't mean it's superior than closed source. So where does that leave you?

[reply]
      I'm taking the middle ground here. I do not think software manufacturers should be blanket-protected from liability, nor do I think they should always be liable. I think these details should live in the contract. I do not see any other way in which unscrupulous vendors can be held accountable while at the same time allowing open source efforts to progress without fear of lawsuits. It makes me grimace, but taking either exteme I think would be worse.

      There is lots of case law out there for widget manufacturers, lots of laws regarding false advertising and fraud, among other things. For whatever reason, markets seem more willing to accept ridiculous terms for software. Perhaps this is because the real risks remain pretty obscure for average people to discern when it comes to software.

      Having your systems compromised can be very expensive. But what other options are there? How many companies are in a position to demand a different licensing agreement? Just because software is open source doesn't mean it's superior than closed source. So where does that leave you?

      I agree it can be expensive; you and I know this. Average non-technical Joe does not neccessarily know this. These risks remain obscure. I advocate education over legislation, or at least heavy-handed legislation that penalizes, say, open source in the iterests of corporations, or corporations in favor of open source. Existing laws on false advertising should be employed: a company advertising their product as "secure" bundled with a EULA saying "you're on your own and you can't sue us" strikes me as disingenuous. Like any product, software should be required to work as advertised.

      Where does this leave us?

      There is still a role here for consulting firms to fill the gap with auditing and hardening services. This sort of assurance is expensive, but security does cost money. This role will remain marginalized so long as people aren't educated about risks involving software; with education the pendulum can swing back towards tolerating a little inconvenience for the sake of security. Legislating the tides to halt is not the answer.

      Matt

[reply]
        I advocate education over legislation, or at least heavy-handed legislation...

        I agree with you here. As people learn more about security I'm sure the situation will improve somewhat. The insurance industry will play a major role in this education as well. As I noted earlier if companies see much higher premiums for using, oh lets say, a Microsoft product, they might consider looking at alternatives a little closer.

        Existing laws on false advertising should be employed: a company advertising their product as "secure" bundled with a EULA saying "you're on your own and you can't sue us" strikes me as disingenuous.

        This would solve a lot of the problems. Consider Oracle's "Unbreakable" campaign. If they knew for certain they'd face lawsuits over false advertising they might have taken a little more care in making their claims.

[reply]

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