May 11, 2002

Commentary: Software lemon law with bitter taste

Author: JT Smith

By Mikael Pawlo -

What if your computer program vendor or developer could not limit his
liability by using a shrink- or click-wrap contract? How long would it take
to drive Microsoft out of business under the burden of liability claims? I
guess just a few Windows crashes would do. But a law defining product
liability for computer program developers would also kill Free Software
and Open Source with the same stroke of a pen.
The Economist reports that a panel of experts at the National Academy of
Sciences in Washington, D.C., wants legislation introduced to end the
software industry's special exemption from product-liability suits. Such a
law is usually referred to as a "lemon law." The lemon laws were
introduced to protect your rights as a consumer and are
different in different jurisdictions. Usually they apply to cars, boats
and other consumer products, including computers. The expert panel wants a
lemon law for computer programs.

An Open Source advocate would probably embrace such legislation at first
sight. The legislation would skyrocket production costs for Microsoft if
the company were forced to release foolproof products. We all know that the open
and distributed model for development described in Eric S. Raymond's book
"The Cathedral and the Bazaar" is much better and creates more reliable
products than any closed non-distributed development model. However, such
legislation may actually work the other way around and effectively and
permanently kill all Open Source and Free Software development. A very
important part of the GNU General Public License is the provision
regarding limitation of liability. According to GNU GPL clauses 11 and
12, the computer program is distributed as is with no warranties at all,
unless otherwise provided by law. The courts would not recognize such
limitation of liability if a law providing strict liability for serious
errors in computer programs was introduced.

Hence, even Open Source projects would run the risk of a liability suit
under such a law. The claims may be much smaller than in the comparable
Microsoft case, due to the often non-existent price, but who would dare
spend a few spare hours contributing on the Gnome project if he risked
liability, no matter how small the claim?

You may argue that the users have a valid claim to get products that
actually can be used for the purpose the products are designed for. Thus,
the consumers would benefit from a strict liability for computer program
developers. That might not actually be the case. With strict liability, the
prices for products will increase, while the developers will need to get
expensive insurance and substantially prolong the beta test period to find
any possible bug. Hence, fewer and more expensive computer programs may
reach the market. The lemon law case for computer programs is more complex
than lemon laws for cars. Computer programs may be run a wide range of
platforms and for uses that can not be predicted by the developer.

Computer programs are not material goods and cannot be dealt with in the
same way consumer advocates wants the legislature to deal with cars,
electric appliances and toys. Computer programs are developed
incrementally, and the users are always used as dummies. Bugs are
eventually corrected when the users discover them. If the computer
programs are to be as foolproof as cars before they are released, we need a
lot of the IT equivalent of crash test dummies. And the next Linux will
probably never be released.

Mikael Pawlo is an associate of the Swedish law firm Advokatfirman
Lindahl. On nights and weekends, he works as an editor for the leading
Swedish Open Source and Free Software publication Gnuheter, which he
co-founded with Patrik Wallstrom.

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