UK Court Finds Company Liable For Software Defects 205
normsky writes "A software company's stipulation that it couldn't be held accountable for the poor performance of its software was unfair and could not be enforced, the High Court has said. 'Pursuant to the Sale of Goods Act 1979, a term is to be implied into the contract that Entirety would be fit for the purpose for which it was bought, namely that the system would increase revenue and occupancy levels and would allow quicker check-in and check-out, including accurately processing groups and making changes to group reservations while preserving the accuracy of the system. I am satisfied that Entirety was not fit for the purpose for which it was sold,' his Honor Judge Toulmin wrote."
Yay! finally some accountability for all those bug (Score:5, Insightful)
Great news - and am happy this is being done. Maybe if this is held as a precedent, more software will be written sensibly and with fewer stupid bugs and features.
I think it is unforgivable that software companies can provide us any software they want (esp. in enterprise software) and get off without any problems. All this is due to very little attention paid to during the SDLC to thinking of problems and use cases and testing.
Yay good for UK - and hope developers in US also get their feet held to the fire soon!
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That should mean that patching for security etc, should be available for a reasonable period as a right.
Or that the product should be secure against vulnerabilities known to be prevalent at the time at which the software was sold. I would not read it as implying an ongoing duty to provide patches against unknown threats.
There might be more of a debate about threats which, whilst known at the time of sale, were purely theoretical, with no realistic prospect of being a real vulnerability, but which, so
Re:Yay! finally some accountability for all those (Score:2)
Re:Yay! finally some accountability for all those (Score:4, Insightful)
Yay, higher prices for software. What, you expected a lower bug rate without any added cost? At least now you won't have the option to buy software of current quality at a discount; you'll only be able to get the finest (at a higher price).
Of course you'll have the option to buy lower quality software at a discount price, all that will change is that the sales guy can no longer lie and tell you that it's actually high quality software at a discount price. If you're happy to buy buggy software and pay less for it then he shouldn't need to mislead you in the first place, and if this market exists then the people writing buggy software will continue to do so - for many people "good enough" is worth the discount.
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Yay, higher prices for software.
Because software vendors don't know how to calculate demand-curve pricing right now, and this will give them incentive to learn?
You seem to be under the mistaken impression that software companies aren't already pricing their software at the maximal rate of return.
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On a note - whoever classed parent as "Troll" must be the real troll.
Anyway - for some reason we have been living through an era of too many years where accountability for defects in a product never have been applied to software, only on most other products around us.
Today there are tools available for ensuring code quality (functional quality, not cosmetic quality) - like FindBugs [sourceforge.net], so there is no excuse except the weak excuse of pressed time schedules, which often is caused by improper time management in t
BUT (Score:2)
What you say is all very true, but the problem is that we don't have engineers in software. And that doesn't just mean the title, it means the laws that require a software product to have been vetted by an engineer.
If I build something, I must have my drawings vetted. The government won't allow me to start construction until someone has signed of on it. And this means that the law ensures that highly paid engineers are responsible for quality.
In software development, a lot is done by a 18 yr old who works
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If Joe Consumer buys a shiny box-o-shrinkwrap, he basically has zero power. Most stores won't do anything more than replacement-in-kind, for physical defects in the medium or accompanying accessories, no returns. The inevitable nasty EULA will be hiding inside the shrinkwrap that confirms your acce
Re:no accountability for all those bugs (Score:2)
His Honour Judge Toulmin also said that the software was not up to the tasks that Kingsway needed to use it for, and which Red Sky should have known were part of Kingsway's needs when buying the product.
This isn't bugs, this is the software doesn't have the features claimed. You get a product demo and think it's going to be awesome, install it, and then find out it doesn't do what you need it to do. Think SAP. I'd bet if you have a horribly unusable interface but it is sufficiently documented so you can
Re:Yay! finally some accountability for all those (Score:5, Informative)
Not really. If you're doing something for free, many laws don't come into play. For example, this is about the "Sales of Goods Act". If you're not selling, you don't have to worry.
Accountability for software sold is a good thing. Because right now, there is none.
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And don't go pulling t
Re:Yay! finally some accountability for all those (Score:5, Interesting)
Just because you don't want it applied isn't enough. The "Sale of Goods" act doesn't cover free things. "Fit for purpose" requires a stated purpose. And this wasn't about bugs, it was about software that didn't come close to doing what the salesmen asserted it did. It wasn't just a big, but it was a piece of software that didn't really work.
This is a great ruling for the people. Someone lies to sell shit that doesn't work, and they get sued. "It's a bug" isn't a defense of fraud. That's all this means, and your "I refuse to listen to anyone that disagrees with me using arguments I don't have answers for" comments can't change the reality. This doesn't affect OSS, and it doesn't affect people that ship products that actually work (even if they have bugs). The software in question didn't do what it was sold to do, and so they should be sued and should lose. *Everyone* should like this decision except people who engage in fraud.
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On th other hand, many free software projects, despite being perfectly usable, often don't actually leave alpha. I think a lot of this has to do with claims made about the software from the manufacturer. If you're clear that it's a work in progress, etc. I think you're in the clear.
Re:Yay! finally some accountability for all those (Score:5, Insightful)
ROFL (Score:5, Funny)
... MS ... contract ... accountability on both sides.
Congrats. You've made my day. That has to be one of the funniest sentences I've read here on Slashdot.
Tell me, when was the last time you read a EULA for a Microsoft product?
Re:ROFL (Score:5, Informative)
That's kind of the point of why this is an interesting / important story. Everyone has those kinds of statements in the EULA, and this judge has ruled that if you're selling a product to do X, it better actually be capable of doing X because no amount of weasel-words gets you out of the fact that you sold someone a product that would do X.
Re:ROFL (Score:5, Insightful)
That's kind of the point of why this is an interesting / important story. Everyone has those kinds of statements in the EULA, and this judge has ruled that if you're selling a product to do X, it better actually be capable of doing X because no amount of weasel-words gets you out of the fact that you sold someone a product that would do X.
You'd have to read the complete case, not just the headline. If I promise you the software does X, but have a license that says "no warranty whatsoever", and I give you a free 14-day trial where you have a chance to find any faults, then you lose. But if I promise you the software does X, but have a license that says "no warranty whatsoever", and I give you no chance to find any faults before signing the contract, then I lose.
A contract will stand unless it is too unfair. This one was too unfair not because of the words in the contract, but because the buyer had no chance to check the seller's promises.
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From the Windows EULA
"Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you"
It tries to take away your rights , but fails ....
Re:Yay! finally some accountability for all those (Score:4, Informative)
If someone has used freely avaialable open source code to control a dangerous machine or play the stock market, it sounds like it's their own fault rather than the fault of the original author (who may not have intended their source code to be put to such uses). As the GP said, selling someone something vs making it available as reference code for them to do what they like with it, are two completely different things.
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I think you've missed the point. Engineering software in general, including the stuff with a $4000 per seat per year maintenance contract, comes with a EULA that basically says the software provider is not liable for the results from that software.
Even if it is used in accordance with the help manual by trained users.
Even if the problem is directly caused by a fault in the software.
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That was the point of the summary yes, but the thread I was replying to was discussing free vs paid software.
Re:Yay! finally some accountability for all those (Score:5, Insightful)
What laws not contingent on a sale having occurred? Negligence and other torts? Not likely: there is no case law suggesting that, and it is a completely different situation so this case has no bearing on it.
What happened here was:
1) There was a sale of goods, and therefore an implied contract term that the goods were fit for purpose.
2) The exclusion clause relied on the customer having been supplied with documentation before purchase that they never received.
3) As a result of 2), the customer relied on the suppliers descriptions of what the software could do.
In the case of hobbyist software
1) there is no sale of goods and no contract (an open source license is not a contract)
2) There are no conditions on disclaimers of liability
3) There is no salesman making unrealistic promises to the customer.
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1) There was a sale of goods, and therefore an implied contract term that the goods were fit for purpose.
In the case of hobbyist software 1) there is no sale of goods and no contract (an open source license is not a contract)
What I'm not clear on is whether this changes the status of licences. The last I read, licences alone were not goods. My brief scan of the judgement made me think there WERE goods (and support and training) involved in this contract as well as the licence. So I think there's a fourth reason to think that OSS might not be affected, even if it was sold: no goods are involved, only licences. I certainly wouldn't want to assume I could sue an off-the-shelf software supplier if its product was unusable.
Is ther
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A typical OSS license only involves copyright, and related issues such as redistribution and making changes.
However many OSS software is "sold" with all kinds of claims on what it can do. Have a look at the Firefox home page [mozilla-europe.org] for example:
Meet the World’s Best Browser With security, stability, speed and much more, Firefox is made for the way you use the Web.
That's what it starts with. I would consider this plain advertising, and as such fall under relevant advertising laws for a start.
Now indeed when I download this software I do not sign a sales contract with the Mozilla Foundation, however I do have certain expectations reg
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Paranoid disclaimer: I am a law student, not a lawyer, and I am in no way certain that what I'm saying below is true. You certainly should get yourself a real lawyer and not rely on anything I've written.
I don't know about UK law, but in the US, largely due to our federal system, the situation is quite complicated.
In the U.S., the law is inconsistent in a variety of ways: the 7th and 8th circuits have held that the licensing of software is different from the sale of a good. But this is a minority view in th
unrealistic promises (Score:3, Insightful)
There is no salesman making unrealistic promises to the customer.
Ya, sure there can be. If someone writes a pice of crap and claims (maybe on the crap.org website) that it will do X and Y and Z, or that it's a replacement for a well-known commercial product (not that I'm thinking of GIMP or OpenOrifice or anything else that claims to be a substiture for a brand-leader here) and it doesn't do those things - or does them badly or only in part then that counts as an unrealistic promise.
From a legal point of view, they may be able to get away with it, but froma moral or p
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And in the real world, nobody would put Open Source software into enterprise use without any supporting company or internal evaluation. If someone started using like... GNU StockManager (made up) to manage their stock exchange, without any review or 3rd party support, then they would to some extent deserve what happens. This means that either you should count on external services (IBM, etc.) to evaluate the suitability of the product you want to use before putting it into practice, or have an in-house exp
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Software was defined as "goods" long before this under the SGA. Nothing has come of it it except this (only Australia wants to differ), which is a good precent if you understand reasonableness. In a B2B transaction you can contract out the implied terms and warranties/representations of sale and defer to a sale contract. This protects the consumer. It's the sellers fault for promising the world and not giving it - if only they had an Entire Contract Clause and dis-applied the SGA
Re:Yay! finally some accountability for all those (Score:4, Insightful)
Then the hobbyist should stop claiming his software was fit for a certain purpose.
Re:Yay! finally some accountability for all those (Score:5, Informative)
I imagine you'd only be liable if you actually sell your product to someone, for money, promising them that it'll do something for them. If you just whacked a GPL programme on a website with a label "here is my programme, may or may not work, YMMV", I doubt you could be held accountable for what anyone does with it.
The crux of the court case, if I read it rightly, is that in the UK you aren't allowed to promise your product can do things that you know it can't do and then sell it to someone on that basis. That's standard- what the court case tested is whether putting "(but it probably can't)" in the small print is enough to get you around that. Turns out its not.
That's a good thing.
Re:Yay! finally some accountability for all those (Score:4, Insightful)
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Microsoft is far more likely to be crapping bricks than any freeware author.
Re:Yay! finally some accountability for all those (Score:4, Insightful)
The last time I heard of Microsoft being sued they settled by giving 20 mil worth of software coupons to schools. This was their punishment for being an abusive monopoly, they were forced to engage in a marketing campaign.
I don't see Microsoft crapping bricks anytime soon.
The end of the Microsoft era (Score:2, Funny)
Jim looked at the old storage with nostalgia. Here were many thousands of virtual machines which once served the grand purpose of moving the enterprise forward. For the most part they were identical smart clones but here and there the user had customized to suit his needs in novel and interesting ways. They might have been notable innovations if anyone cared. But space is space, and nobody had accessed these VMs in a very long time.
So he clicked delete and they were gone - the last Windows desktops. T
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Lacking mod points, I just want to say I like the voice and rhythm of your writing. It has the feel of some of the science fiction I like to read. I hope are able to do more with it than write interesting bits of stories on Slashdot.
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This case is not about accidental bugs, but about intentional ones. I would gladly like to be able to sue a company that slipped a trojan in their application without clearly informing me about it; or one that promises to give me something and instead it only gives me a mock-up or even nothing at all; or one that sells me software that was intended to stop working a year after the purchase without clearly informing me about it. What does this have to do with hobbyists, I do not know... RedSky was sued for f
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not really. fta -the judge is pretty clear that the reason for the ruling was that the software company basically misrepresented what the software could do, and also didn't let the hotel test it or read docs, etc.
for this reason, he threw out the clause which says 'you pick the software, it's your problem if it doesn't work'
---
"The exclusions in clause 10.2 [of the terms and conditions] only applied where the Operating Documents as defined in Clause 1.1.6 were supplied to the customer before the contract wa
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Interestingly, the sale of goods act would cover open source software - even if the price was zero.
I think that this would depend on exactly what you meant. Distribution of software alone (i.e. without embodiment in a physical object, be it a computer or a CD), may not meet the definition of a "good". Similarly, SoGA applies to "contracts of sale of goods"; in the case of open source software distribution, there are likely to be arguments as to whether:
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How could there be a money consideration without payment? You says its questionable, but surely "money consideration" must require a payment.
Another thing with open source, is you often do not download it from the author. All the software on on my computer is either:
1) downloaded from whatever repo mirror I am currently using
2) off an iso which I got from a torrent
if there is a transfer of property, who is it from? The author or the download mirror? If its a torrent, does that change anything?
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mod parent up
is there not implied contract between a user and open source software distributor if exaggerated claims are made about the software? I'm thinking carlille v smokeball co although that's a bit of a leap if the distribution of OSS, as you say, isn't a sale of goods/services. At least in carlille, something was purchased based on claims made by the manufacturer allbeit, pre-SoGA.
money consideration - I was always under the impression that payment in money doesn't have to change hands for SoGA s1
Re:Yay! finally some accountability for all those (Score:5, Interesting)
Interestingly, the sale of goods act would cover open source software - even if the price was zero.
I am not a lawyer, but I fail to see why. From the Sale of Goods Act 1979 [opsi.gov.uk], 2(1):
A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.
I doubt £0 would constitute "consideration" in this context.
As far as I can see, the most significant consequences of this ruling are that:
This is particularly interesting because if EULAs do have any legal standing at all here, then they are probably a contract of adhesion based on technicalities about copyright.
I imagine some lawyers are running around looking nervous at quite a few big software companies this morning. All those DRM systems, for example, just became a bit of a liability: if I install a game and it simply doesn't work, then all those arguments about not returning opened products for a refund just became untenable. (Take note, Ubisoft and games shops.) And if you play silly wotsits on someone's computer to try to install your software's copy protection system and you get it wrong and damage their system, $DEITY help you, because it looks like the courts aren't going to. (Take note Sony, Adobe, et al.)
Of course, we'd have to see the complete context before reading too much into this case, because it sounds like the sale was made following significant contact between the parties and specific claims by the sellers, which might or might not still be the case with typical off-the-shelf or preinstalled software.
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I would consider it reasonable if cases like Sony's root kit fiasco would be punishable under computer crime laws, like gaining unauthorised access to a computer.
In that case: when someone wants to play a music CD on a computer he does not expect it to start running any kind of software on that computer. If it does through the auto-start function, then it should immediately show itself to the user, and tell exactly what it intends to install, and not install anything without any kind of further user intera
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SoGA requires a consideration - that needn't be cash, it could be in the form of a service or the transfer of some other goods or chattels
I think there is some confusion between the requirements of a contract (of which consideration, which need not be money, is one element), and contracts to which SoGA applies (sales for "money consideration"). To fall under SoGA, amongst other things, there must be "money consideration", and so a service, or transfer of other goods (e.g. bartering) is insufficient.
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with open source, the 'consideration' could be an expectation that some of the user base contribute code fixes, report errors, respond to queries on a forum and so on.
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RTFA.
The case was based on implied contract terms in a sale of goods. If you do not sell or there is no contract (a license is not a contract), there can be no implied terms.
The exclusion clause was held to be invalid because it assumed that the buyer would be supplied with documentation describing the hardware. The documentation was not supplied, so the buyer relied on the suppliers descriptions, so the supplier was held liable for misleading the buyer.
A hobbyist would not sell (so the Sale of Goods Act wo
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So you really think it's perfectly okay for salespeople to lie about a product's capabilities, and a customer who buys a product and then discovers it can't do what the vendor claimed it could do ought to have no recourse?
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Applies to consumers only (Score:3, Interesting)
Although, in this case, despite being a business, the recipient / purchaser was treated as a consumer, given the one-sided nature of the negotiations in respect of the clause in question. (I.e. doing business on the other side's standard terms.)
Similarly, had there been sufficient opportuntiy for the purchaser to test the product, rather than relying on a demonstration by the vendor, the outcome may have been different; as, potentially, would have been the case in which the vendor had pointed out that the software had particular known problems / lack of support in certain areas.
Re:Applies to consumers only (Score:5, Interesting)
It sounds like it would be applicable against post-sale removal of features as well, as in the Sony PS3 other os case.
In other news (Score:5, Funny)
Mr. Ballmer woke up in a sweat in the middle of the night, not knowing exactly why...
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as if a million lawyers cried out in joy, and then, nothing.
it's about time (Score:3, Interesting)
On the one hand, I hate the idea of my industry being flooded with lawsuits; along with software patents, it's just one more nail in the coffin of small scale software entreprenuership.
On the other hand, those "we're not responsible no matter what goes wrong and how much damage it did" EULA's are holdovers from the 80's, when personal computers were experimental toys, and software was mostly games. No other consumer product I know of comes with a contract you have to sign which basically stipulates that the vendor takes no responsibility for the quality of the product at all. "If this software goes haywire and blows away your financial records - well, hope you had backups, and a bunch of time to recover them, because we didn't have time to test it, sorry". Imagine if a car or a washing machine came with an agreement like that - "if this thing shorts out and burns your house down due to a design flaw, it's your problem, luser, you should have installed sprinklers". That's bullshit.
Software is a real product in which people now invest large amounts of time and trust. It's time for the industry to grow up and take legal responsibility for its products. So much for "good enough" software - and as a user, I say good riddance, too.
Re:it's about time (Score:5, Informative)
Imagine if a car or a washing machine came with an agreement like that
I had a hybrid version: an automated car wash at a petrol station did serious damage to my car after it collided with it.
The immediate reaction from the staff on site was to deny everything, point at some weasel words on a sign full of disclaimers, and claim that my car wasn't suitable for their machine (even though they could see it when they sold me the token to put in the machine, and it had been through the same machine without incident on several previous occasions).
However, when it reached their central "customer care" people at head office, they immediately arranged to pay out a substantial sum of money to cover the cost of repairs on a reasonable basis (asked me to provide two quotes from reputable local repair shops).
I later discovered that there had previously been at least one similar case that had gone to court, where the car wash operators pretty much got torn a new one. I imagine the "customer care" people were aware of this, or at least their legal team was.
So much for "good enough" software
On the contrary, it seems this ruling says precisely that software must be good enough. Unless there's something in the actual ruling that is completely missing from TFA, this doesn't require all sold software to be perfect or bug-free, just that it be fit for purpose and of merchantable quality.
That probably means that the more you pay for software and the more the advertising promises, the better the quality and functionality would need to be. A cute graphics demo that cost £1 on an app store for your mobile phone would not be expected to do the same things and with the same reliability as medical device control software you sold to a hospital at £100,000 per unit.
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Not atypical of the UK and the EU... (Score:5, Interesting)
This case isn't really atypical of the UK and the EU. Being an American ex-pat who works and lives in the UK, I am always amazed to see how many US companies don't understand the implied warranty and fitness for purpose concepts in UK and EU law. The terms of service of a lot of software don't mean anything, it truly is about if the seller and the consumer are fair and equitable with each other and it is very hard for the seller to be able to constrain the rights of the consumer. Take for example BSkyB for EDS where the contract cap was broken because EDS was deceitful in the sales process about the timelines it would take to implement a solution.
step-by-step guide for Americans (Score:5, Insightful)
In America, the buyer must beware: there's this weird idea that it's OK to con someone, because they should somehow know that the person they're buying from isn't trustworthy, essentially throwing all "perfectly informed and rational consumer" theories out of the water. Western European countries tend to have the different opinion that you don't get to fool someone any time (unless you're a civil servant or banker). Sales of most goods are very much not final - for example, the Distance Selling Regulations stipulate a trial period for many goods bought online. So:
1. Do you feel your software is of good quality?
If YES, go to 2.
If NO, give away or do not distribute.
2. Are you prepared to fix any serious problems with your software found by your customers in the year after you've sold it?
If YES, go to 3.
If NO, give away or do not distribute.
3. Do you want to make money from others on the basis of honest trade?
If YES, go to 4.
If NO, give away or do not distribute.
4. Are you prepared to accept that for a consumer to be properly informed about a complex product, he must have a trial period?
If YES, go to 5.
If NO, give away or do not distribute.
5. Congratulations, you're not a shyster and are the sort of businessman an economy needs.
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What is hypertext if not a disorganised set of modules with lots of GOTOs? ;)
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Just because something can be misused is not a valid reason for removal. Gotos are useful at times and can make code easier to read.
http://portal.acm.org/citation.cfm?id=1241524 [acm.org]
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Are you trolling or misinformed? "Shyster" is a corruption of "Scheisser", as in someone who produces shit, and has nothing to do with Jews. Disabuse yourself of your persecution complex. [worldwidewords.org]
(Perhaps you're thinking of "Shylock", whose original portrayal could be argued as anti-Semitic - but that doesn't mean the word's current use suggests any opinion by the user on Jews.)
RTF*findings* please! (scaremongering dispelled) (Score:5, Informative)
They are most informative, for those above crying about imaginary worries that this decision causes liability which did not exist before for free / OSS developers. It doesn't make even things harder for commercial developers, provided they're not a bunch of conniving idiots.
Here's the crux, on which the claim relies and the defense fails . .
in para 66 Toulmin finds: "*Red Sky's advertising materials for Entirety make specific claims for Entirety*. They include, among its other advantages, that Entirety "dramatically increases revenue and occupancy levels, allows quicker check in and check out service to paying guests. "This is the essence of the service Red Sky was claiming to provide for Kingsway. "
But the real fun is to read how Red Sky's case collapsed . .
some choice quotes from the findings, no particular oder, edited for brevity:
"Mr Benson was ill prepared when he came to give evidence. . . He said in his CV that he had been employed for seven years immediately preceeding his employment at Kingsway. This turned out to be untrue. . . His witness statements gave the impression that he was responsible for IT contracts . . In oral evidence he had to admit that, on the contrary, he was employed by Ramesys as a technical installer . ."
"Mr Edwards was at all material times the Managing Director of Red Sky. He said in oral evidence that he understood the business side but not the actual detail as to how the software was used. "
"Ms Howard found herself in the uncomfortable position of having to defend the Action on behalf of her superiors . . " (they left it to their junior to defend the court proceedings against them! Wow!)
"Reverting to Ms Howard, there appeared to be times when she was covering loyally for the inadequacies of Mr Frost, to whom she reported, and others at Red Sky. Her witness statements contained important and glaring inaccuracies."
so in summary, the vendor lied outragously both about their product capability (not thinking to find some choice disclaimer either in their ad - copy nor in other material representations to the original sale which might have gotten them off the hook) and stumbled into court still telling a pack of lies.
FOR THOSE NOT CONVINCED THAT THIS IS OTHER THAN BUSINESS AS USUAL, PLEASE SHOW ME WHERE IN TFF (the f findings of fact)THERE IS A INTERPRETATION OF LAW AS TO THE EXTENT OF WARRANTY WHICH REVISISE PREVIOUS LAW???!!!
Frankly, it's just an silly workaday case, short in findings, and frankly rather fun to read.
Says plenty about the journalists who highlighted this that they could write more words than obviously they cared to scan - read even from the source.
As to the case itself, meh, nothing to see here, but gotta feel sorry for Ms Howard.
Or very very happy if you're her employment attorney, depending how you look at it . .
Sounds like (Score:4, Interesting)
The perfect law to use when going after all the fake AV software companies.
Bad headline (Score:5, Informative)
I read this on the Register yesterday. The /. headline is wrong. The court *didn't* find the company liable for software defects, they found them liable for misselling the product; the customer relied on the claims made by the company and those claims were wrong. The software was not capable of doing the job the customer needed, but the company claimed that it was.
Nothing to see here, move along (Score:2)
Seriously. This is quite basic, and common to all sorts of goods. In the US, any state that uses the Uniform Commercial Code (which is almost all of them) has something similar. Basically any good sold must be guaranteed to be fit for the purpose that it is sold. Thus if you sell a battery, and that battery is advertised as being able to produce a certain voltage to power devices, it has to do so. If you sell a dead battery, a customer can return it for a refund as the battery wasn't fit for the purpose it
Difference (Score:2)
Please be aware that there is a difference between "free of bugs" and "useable for the intended purpose". This verdict is not new. If you sell a software for purpose "X" and afterwards it turns out that "X" cannot be reached due to limitations, you were always liable (at least here in germany). But several courts have ruled, that no complex software is 100% bug free. There are and will always be bugs. But the software must still be useable for the intended purpose.
CU, Martin
Not as bad as TFS implies (Score:5, Insightful)
This is not the horror story which the headline and TFS seem to imply. The key points are:
* The software company (Red Sky) sold the software without letting the customer (Kingsway) try it or read any operating documents
* Kingsway thus bought it based *solely* on the sales advice of Red Sky
* When the software failed to live up Red Sky's promise, Kingsway tried to get their money back
* Red Sky tried to rely on a clause in its standard T&C which said that the only remedy available to customers was to make use of its maintenance and support functions. Thus it said that Kingsway could not sue it for a refund
* The High Court disagreed and said that Red Sky's clause was unfair under the Unfair Contract Terms Act. It said that this Act applied and protected Kingsway because negotiations between the companies had been one-sided on the issue of liability
From TFA:
"Red Sky's' standard terms were predicated on the fact that a prospective customer would investigate Entirety [the software] and make up its own mind whether or not to purchase based on demonstrations and the Operating Documents which Red Sky had previously supplied," said the ruling. "It did not apply to circumstances in which the customer relied on Red Sky's' advice in deciding to purchase Entirety"
In brief: If you are going to make promises about your unseen and untested product, you cannot prohibit the customer from getting a refund if it turns out you misled/misinformed them.
Seems fair to me and it has no real issues for software vendors or OSS people unless they also allow their sales people to make promises that the development team cannot support
UK Court Finds Company Liable For Software Defects (Score:2)
Sale of Goods Act applies to business purchase? (Score:3, Interesting)
You learn something new every day - I remember being taught that the Sale of Goods Act applied only to purchases made by consumers - i.e. that it was purely consumer protection legislation. Business to business sales were not covered (usual breach of contract litigation would, of course, still be possible).
Just googled it, and it does appear that I was taught wrong - it does apply to business purchases.
Forward it to marketing (Score:2)
Hey guys! Don't sell more than we can provide!
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'Pursuant to the Sale of Goods Act 1979, a term is to be implied into the contract that Entirety would be fit for the purpose for which it was bought,
Granted, you can sell open source software, but I bet the vast majority of OSS is given away freely. It would therefore not count as a sale.
Reason two: As an example, doesn't the GPL state that the software comes with no warranty? I'd think that would free the creators from liability issues with regards to bugs or functionality.
Re:What about OSS (Score:5, Insightful)
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From now on the purpose of all code sold will be "It juggles ones and zeroes."
Unofficially, it might do something useful.
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I'd love the see that advertisement...
Because if it advertizes something besides "juggling ones and zeroes", you're not going to get out of it when the lawsuit comes around.
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Er, the whole point is you can't assign away any responsibilities if you've sold it at all. It must be fit for purpose.
It's a limited ruling, but my hope is that one day a Ralph Nader crusader will arise in our midst declaring Windows to be "Unsafe at any Speed". ;-)
Re:What about OSS (Score:5, Insightful)
While it might be good to hold commercial companies responsible for the software they sell it can place OSS developers in a very bad situation.
If you sell your software to someone using only a rigged demo to convince them, then yes - you'd be liable if it wasn't able to do in reality what it seemed to do in the demo. With OSS - and heck, many commercial apps - you can usually evaluate it first, in which case this law would not apply. AFAIK it was the fact that they weren't able to evaluate it properly which caused the problem.
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A free service is not governed by business laws because there is no payment. Even a judge who has never heard of computers should see that, so there is little danger there.
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But even free software should do what it claims. Ofcourse, for free software there is (a) the possibility to evaluate the software free of charge and (b) no pressure to advertize it being fit for some purpose it can't meet. So it would be hard to actually get a lawsuit going on this one.
However, I think for malware and software containg trojans this ruling provides interesting possibilities for civil lawsuits.
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The GPL license includes a warranty disclaimer [gnu.org], though.
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The GPL license includes a warranty disclaimer [gnu.org], though.
It's a nice disclaimer, but given the current ruling I don't think you could get away with that if you delivered open-source software (say, Pentaho) and it didn't work for the purpose you said it would be good for. Remember, open source is not the same as free. Pentaho et al would certainly be liable if their software did not perform according to the claims they made.
Even for free software, I can think of a situation where someone might get sued for delivering free software that doesn't work. However, that
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Just make software the same as all other goods. If not fit for purpose I can return it for full purchase price, when that purchase price is zero, I can return it for that amount. Software companies want the boon of both product and contract sales but are not willing to accept the disadvantages of either, with a product I can return it if defective, with a contract
Re:Implications! (Score:5, Insightful)
What part of the word "sale" do you not understand?
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I think it's fine, if you sell software that doesn't do what you advertise it to do you should be held accountable. After all you can't sell someone a physical product that doesn't do what's advertised so why should software get special treatment here?
Re:Implications! How about chinese crap? (Score:4, Interesting)
You know, I know a few Chinese folk, including the owner of a couple of factories, and they complain that the American buyers don't want the slightly higher priced quality goods but always buy the lowest priced crap they also put out. Tariffs won't solve that issue at all because it just increases the prices for all of their stuff. Apart from that, if you institute tariffs the next step would be for China to retaliate likewise or demand compensation from the WTO.
But perhaps you might want to take this up with your local store-owner? It seems they're best positioned to solve this. Because surely, it can't be that the fact you buy the cheapest stuff you can find, has anything to do with the fact you end up with crap?
Not really... (Score:5, Insightful)
If you'll bother to read the article (yes, I know...) you'll see that the customer was only given a demonstration of the software by a sales rep and the sales contract said "no money back".
If your software has a free trial period and/or you allow refunds then you're OK - people can try before they buy.
Where you can sue . . Re:Implications! (Score:2)
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The worst part of this feature is that it doesn't allow me to copy/past said message into a browser to google it and possibly get more information on what it actually means.
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That's intentional. It's virtually impossible to do that in Linux when you get a kernel panic, and for the same reason.
The kernel knows something has gone horribly wrong.
Now, while in some circumstances it may be possible to continue, that something that's gone horribly wrong could have all sorts of unknown issues. If you're lucky, the computer would do one of the following:
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No, the judge basically said that even with that clause (which they had!), you still have to sell something that actually does what you say it does. So you can include that statement as many times as you want, but it just won't apply if you sell stuff that just doesn't work as stated.
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So you can include that statement as many times as you want, but it just won't apply if you sell stuff that just doesn't work as stated
Emphasis mine: stated where?
If this clause is the only one describing the product, it is perfectly valid. What's not possible is advertising certain capabilities elsewhere (demo, advert) and then relying on this clause to defend you from those promises made.
I think I can agree on that. It would be highly unlikely that this clause will be the onliest communication of the capabilities of the program.
Could be fun though - it would lead to statements such as "I could tell you what this program does, but then I'd have to kill you" :)