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High Tech (Ir)Responsibility
by Neil Watson, in Editorials - Sat, Jan 19th 2002 00:00 UTC

Want to sell your own product but not have to worry about those silly guarantees and liabilities? It's easy -- start your own high tech company!

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Work without responsibility

Consider the automobile. The government regulates the safety equipment in your car. Airbags, side impact beams, 5MPH bumpers, seatbelts, and standard crash tests all help protect you and your passengers while in your car. Do you think most of these systems would exist without government legislation? Consider that airbag technology has existed since the 1970s.

While the government tends to keep an eye on the automotive industry, the computer industry seems to be able to operate with virtual impunity. Let's look at some examples:

Look at the recent proposed settlement between the United States Department of Justice and Microsoft. Many in the business and computer world consider it a farce.

Have you actually read the End User License Agreement (EULA) on any of your software? Did you know that, in spite of the thousands of hours of development and testing that make up the expensive price of software, there is no guarantee of any kind? If you buy the software and it doesn't work or destroys your data, it's not the software company's fault. It's no one's. Try to swallow these EULAs:

Two separate software companies:

One:

"(name withheld) does not warrant that the Software will meet your
requirements or that operation of the Software will be uninterrupted or
that the Software will be error-free."

"REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE, IN NO EVENT WILL (name withheld) BE LIABLE TO YOU
FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES,
INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR
INABILITY TO USE THE SOFTWARE, EVEN IF (name withheld) HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES."

"IN NO CASE SHALL (name withheld) LIABILITY EXCEED THE PURCHASE PRICE
OF THE PRODUCT."

Two:

"TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
(name withheld) OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY
LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE
PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES,
EVEN IF (name withheld) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN ANY CASE, (name withheld)'S ENTIRE LIABILITY UNDER ANY
PROVISION OF THIS EULA SHALL BE LIMITED TO THE GREATER OF THE AMOUNT
ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR U.S. $5.00; HOWEVER,
IF YOU HAVE ENTERED INTO A (name withheld) SUPPORT SERVICES AGREEMENT,
(name withheld)'S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE
GOVERNED BY THE TERMS OF THAT AGREEMENT."

From a hardware company:

"Any Product requiring service during the Warranty Period should be
returned to (name withheld) in accordance with the "Return Material
Authorization" Process set forth in the documentation for that
product and on the (name withheld) Web site."

"EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO EVENT SHALL
(name withheld) HAVE ANY LIABILITY TO PURCHASER OF THIRD PARTY FOR ANY
CLAIM, LOSS OF DAMAGE OF ANY KIND, EVEN IF (name withheld) HAS BEEN
ADVISED OF THE POSSIBLY (nice grammar) OF SUCH DAMAGES, INCLUDING BUT
NOT LIMITED TO LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL,
PUNITIVE OR INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH (A)
THE PERFORMANCE, USE OF OR INABILITY TO USE ANY PRODUCT OR ANY DATA,
SOFTWARE, OR EQUIPMENT RELATED THERETO OR USED IN CONJUNCTION
HEREWITH, OR (B) INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR
OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.  IN NO EVENT
SHALL (name withheld)'S LIABILITY FOR DAMAGES, WHETHER ARISING OUT OF
CONTRACT, NEGLIGENCE, WARRANTY, OR INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHT, EXCEED THE PURCHASE PRICE PAID BY THE PURCHASE FOR THE
PRODUCT."

From an ISP:

"(name withheld) assumes no liability whatsoever for any claims,
damages, losses, or expenses arising out of or otherwise relating to
the unavailability of the Service in your geographical area, even
where such unavailability occurs after installation of the Service."

You would think these statements relieving the companies of any responsibility would satisfy them. Think again.

Companies are now trying to hide any evidence of their poorly-functioning products behind the law. Consider the Digital Millennium Copyright Act (DMCA) that makes it a criminal offense in America to create software that would demonstrate a weakness or defect in the security of any software or hardware product.

This article at the Register talks about how Microsoft is attempting to prevent any discloser of bugs in their software.

Business Week has an article in which an ISP tells a customer to remove his firewall security or they can't help him with his broadband Internet connection.

"Psst, wanna buy a TV?" whispers Shady Jim in a trenchcoat. He points to the back of his truck parked in the alley. People do this all the time. When you buy Shady Jim's TV, do you expect to bring it back if something is wrong? Of course not. But what if you bought the TV from a store? What if you bought it from the manufacturer? Of course you should be able to return it. Not so with software -- once you open that shrink wrap, the software is yours, no matter how dissatisfied you are.

Disclaimer: The information supplied by the author is for reading purposes only. Should any of the information contained herein cause loss of data, destruction of property, empty love life, bad social standing, or any other event of natural or unnatural origins to the reader or any third party, the author will not liable in this universe or any other.

Author's bio:

Neil Watson works in the greater Toronto area as a network administrator. He lives in Markham, Ontario, Canada, where he spends his spare time running his own domain and learning Perl. He is married and loves his wife Lisa very much. He can be reached at freshmeat@watson-wilson.ca.

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Comments

[»] Well paint me red and call me a wagon!
by Brian Pribis - Apr 26th 2002 10:39:51

Of all the EULA's I have looked at this was the nicest. I guess I never would have expected this from MS. This is from the VC++ .NET EULA. There are questions to be answered like the definition of a "defect" and so on. But this looks like a real life software warranty.

10. LIMITED WARRANTY FOR PRODUCT ACQUIRED IN THE US AND CANADA.
Except with respect to the Redistributables, which are provided "AS IS," without warranty of any kind, Microsoft warrants that the Product will perform substantially in accordance with the accompanying materials for a period of ninety days from the date of receipt.
If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you.