Software lemon law with bitter taste
By Mikael Pawlo
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. MORE...
