Here's an odd couple: Microsoft and the Linux Foundation. These two organizations, normally on opposite sides of almost any issue, agree that a new set of guidelines making software vendors liable for knowingly shipping buggy software is badly off base. They claim that the guidelines are likely to lead to a flood of expensive lawsuits against both large commercial vendors and small-scale open source developers. What's more, it could impose expensive obligations to scour support forums and the like for notice of problems, a procedure that would be overly burdensome for small developers, say critics.
Yes, this is a warning that developers should follow the issue closely. But there's another side to the story: Don't software buyers, both consumers and enterprise, deserve to get what they've paid for: software that solves the problem it was written to address?
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"There is a sense that disclosing defects is bad for marketing," says Fred von Lohmann, a senior attorney with the Electronic Frontier Foundation. Indeed, big software vendors have been arm-wrestling with buyers and consumer advocates over the issue of responsibility for buggy code since the 1990s, he says.
Changing the user agreements: No more free passes for buggy software
A centerpiece for the sometimes heated argument is the ubiquitous user license agreement. If you are one of the relatively few software buyers who has actually read one, you know that vendors typically disclaim responsibility for the quality of their software. And as the law is generally applied today, that means an aggrieved buyer can't sue. Would we allow, say, an auto manufacturer, the same luxury to disclaim responsibility?
Software developers may be held to the same standard as manufacturers under the new guidelines. A key passage -- Section 3.05 (b), if you want to look it up -- says that user agreements contain an implied warranty that purchased software "contains no material hidden defects of which the transferor [the seller] was aware at the time of the transfer." What's more, no matter what language the vendor places in the user agreement, the warranty still stands.
The guidelines are just that: guidelines. Written by the respected American Law Institute, an organization of law professors and a small number of judges, the guidelines are designed to help judges apply the law in intellectual property disputes. They are not binding, but because the ALI is highly regarded in the legal community, attorneys on both sides of the argument believe that they are likely to be influential.