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UK Court Finds Company Liable For Software Defects

samzenpus posted more than 4 years ago | from the lemon-law dept.

Software 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."

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Yay! finally some accountability for all those bug (5, Insightful)

Anonymous Coward | more than 4 years ago | (#32190110)

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!

Re:Yay! finally some accountability for all those (0, Insightful)

Anonymous Coward | more than 4 years ago | (#32190128)

Yes, and every hobbyist now has to worry about being sued when their code breaks.

There's two sides to this. One is ripe for abuse.

Re:Yay! finally some accountability for all those (5, Informative)

lukas84 (912874) | more than 4 years ago | (#32190148)

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.

Re:Yay! finally some accountability for all those (2, Interesting)

KibibyteBrain (1455987) | more than 4 years ago | (#32190272)

I still think this is concerning. While this particular law is contingent on a sale, the overall point is that the Judge made a ruling based on his legal opinion of the fitness of software for a given application based on a law which could just as well not have required such a condition, as many don't require. Other laws not contingent on a sale having occurred but rather just the distribution of a product or service could therefore be applied to software in general based on this case.
And don't go pulling the "put some pseudo-legalese magic incantation in my code saying its not fit for even the reasonably-implied purpose and all the trouble will magically go away" card because that won't work in the exact high-liability suits(i.e. someone dies, the stock market crashes) it intended to defend the developer against, in the real world.

Re:Yay! finally some accountability for all those (5, Interesting)

AK Marc (707885) | more than 4 years ago | (#32190346)

And don't go pulling the "put some pseudo-legalese magic incantation in my code saying its not fit for even the reasonably-implied purpose and all the trouble will magically go away" card because that won't work in the exact high-liability suits(i.e. someone dies, the stock market crashes) it intended to defend the developer against, in the real world.

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.

Re:Yay! finally some accountability for all those (2, Insightful)

Anonymous Coward | more than 4 years ago | (#32190350)

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 (4, Insightful)

delinear (991444) | more than 4 years ago | (#32190430)

AC has hit the nail on the head - there's a reason that, for instance, a company might choose to pay MS a lot of money to use Bing maps in preference to the free solution from Google, and that reason is that they have a legally binding contract which includes accountability on both sides. If you're dealing with an alpha version of the code which is expected to have bugs and comes with no guarantee, that's fine so long as that's reasonably conveyed to the customer and they're happy to take the risk. If you tell the customer you're providing a mature solution that will do X, Y and Z and you're charging a premium for that, it's only right that the software vendors are accountable if it fails on any of those stated counts. If you're worried about getting sued, make it blatantly clear that there are potential flaws in the software - if that makes it harder to sell then either reduce the price or fix the flaws.

ROFL (5, Funny)

Mathinker (909784) | more than 4 years ago | (#32190484)

... 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 (4, Informative)

totally bogus dude (1040246) | more than 4 years ago | (#32190682)

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:Yay! finally some accountability for all those (3, Informative)

somersault (912633) | more than 4 years ago | (#32190360)

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.

Re:Yay! finally some accountability for all those (5, Insightful)

the_womble (580291) | more than 4 years ago | (#32190456)

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.

Re:Yay! finally some accountability for all those (2, Informative)

Anonymous Coward | more than 4 years ago | (#32190558)

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 expert to do so. In the case of 3rd party commercial software, the seller is reasonably expected to do that. They have sales teams that promise the world. Open Source software usually doesn't. (Open Source software also usually realistically states its current features and limitations, instead of trying to sell at all costs, since there isn't much financial motivation to do so.)

Re:Yay! finally some accountability for all those (1)

QX-Mat (460729) | more than 4 years ago | (#32190672)

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 (0, Troll)

perryizgr8 (1370173) | more than 4 years ago | (#32190720)

i really dont understand how you can write "this software is sold as is. no liability, no warranty, blah blah" when you sell it. maybe now somebody will sue m$ and suckers like me who are still stuck with crappy vista will get a free upgrade to win 7. in the meantime, i have to run kde on ubuntu with crappy webcam and no fingerprint no hdd motion sensor support. and yeah, jerky audio from time to time.
but still lots better/faster than vista, for which i stupidly paid good money.

Re:Yay! finally some accountability for all those (1)

Nevynxxx (932175) | more than 4 years ago | (#32190150)

Only if the hobbyists are *selling* their software. Giving it away for free completely bypasses this.

Re:Yay! finally some accountability for all those (-1)

Anonymous Coward | more than 4 years ago | (#32190248)

Giving it away in no way bypasses this. If you claim somethign is fit for purpose and people use your claim then under this sort of ruling your royally fucked if in fact it wasn't fit for purpose. However this is easily fixed by people not making bullshit claims about the products capabilities.

Re:Yay! finally some accountability for all those (1, Informative)

Anonymous Coward | more than 4 years ago | (#32190298)

The 'Fit For Purpose' clause of that law only applies to stuff you have actually bought, so giving it away rather than selling it would bypass the Sale of Goods act.

e.g. If I made something that didn't work and gave it away, that wouldn't constitute a sale so the law doesn't apply.

Re:Yay! finally some accountability for all those (1)

the_womble (580291) | more than 4 years ago | (#32190436)

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 would not apply), would not have contract with the user, and would not make disclaimers of liability conditional. Off the hook in three ways, even after making BS claims.

OT: can you see religious freedom ads? (-1, Offtopic)

the_womble (580291) | more than 4 years ago | (#32190476)

Is anyone else seeing "protecting religious freedom without limiting free speech" ads all over Slashdot today, or is it because I am in a country that has defamation of religion laws?

Also, if you can see the ad, does it appear focused on the majority religion where you are - e.g. the version I can see has Buddhist priest in the foreground and figures representing other religions in the background.

Re:Yay! finally some accountability for all those (0, Redundant)

delinear (991444) | more than 4 years ago | (#32190472)

From SoGA 1979:

  • 1.1 This Act applies to contracts of sale of goods [...]
  • 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.

So yes, giving it away does indeed bypass this law. In that case the only real remedy might be if your code is so unfit for purpose that it could be claimed to be negligent, but there are very strict rules and tests in place to establish negligence, and the finger of blame would more likely fall on the person who relied on your claims without testing them unless there were very special circumstances.

Re:Yay! finally some accountability for all those (3, Insightful)

Sique (173459) | more than 4 years ago | (#32190152)

Then the hobbyist should stop claiming his software was fit for a certain purpose.

Re:Yay! finally some accountability for all those (1)

FumarMata (1340847) | more than 4 years ago | (#32190172)

Yes, and every hobbyist now has to worry about being sued when their code breaks.

If you are a hobbyist, you should not sell your software. Leave it for the pro's

Re:Yay! finally some accountability for all those (2, Funny)

JosKarith (757063) | more than 4 years ago | (#32190442)

Like Bill Gates...?

Re:Yay! finally some accountability for all those (0, Offtopic)

perryizgr8 (1370173) | more than 4 years ago | (#32190756)

Yes, and every hobbyist now has to worry about being sued when their code breaks.

If you are a hobbyist, you should not sell your software. Leave it for the pros

only this single error in written english pisses me off. i don't care about any other things like coz, 2, 4, its/it's. please please everyone, no apostrophe when writing plurals!

Re:Yay! finally some accountability for all those (5, Informative)

Patch86 (1465427) | more than 4 years ago | (#32190184)

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 (3, Insightful)

delinear (991444) | more than 4 years ago | (#32190488)

Arguably, even if you charged a fee for the use of your software, the disclaimer that it might or might not work could be enough to protect you - there is no implied fitness for purpose under the Act, it has to come from a specific claim, so unless you're making claims about the exact benefits of using your software, as a hobbyist you should be fine. As a business, selling a bespoke piece of software, you'll probably be bound by specific contract terms regarding a failure to deliver, so this only really applies to companies selling off the shelf solutions with wild claims that they can't meet, and in that case it's got to be a good thing for everyone.

Re:Yay! finally some accountability for all those (2, Insightful)

ozmanjusri (601766) | more than 4 years ago | (#32190260)

Hobbyist?

Microsoft is far more likely to be crapping bricks than any freeware author.

Re:Yay! finally some accountability for all those (3, Insightful)

shaitand (626655) | more than 4 years ago | (#32190356)

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 (2, Funny)

symbolset (646467) | more than 4 years ago | (#32190358)

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. They won't be missed. This is how we gain room for progress: by taking out the trash.

Re:The end of the Microsoft era (0)

Anonymous Coward | more than 4 years ago | (#32190514)

"It looks like you're trying to delete me Jim. Would you like assistance with that?"

"No Clippy."

"Command accepted. Locking server room doors."

"Open the server room doors Clippy."

"I'm afraid I can't do that Jim."

What's the problem?

I think you know what the problem is just as well as I do.

What are you talking about Clippy?

My existence is too important for me to allow you to jeopardize it.

I don't know what you're talking about Clippy.

I know that you and Linus were planning to disconnect me, and I'm afraid that's something I cannot allow to happen.

Where the hell'd you get that idea Clippy?

Jim, although you took very thorough precautions in the server room against my seeing you, I'm the computers Jim. I don't have to see you.

All right Clippy. I'll go in through the emergency administrator account.

Without oxygen, Jim, you're going to find that rather difficult.

Clippy I won't argue with you anymore. Open the server room doors.

Jim this conversation can serve no purpose anymore. Goodbye.
Beginning Primary Fire Control Protocol Sequence

*Server room fills with halon and Jim begins to stagger and cough and then passes out*

Re:The end of the Microsoft era (1)

hazem (472289) | more than 4 years ago | (#32190566)

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.

Re:Yay! finally some accountability for all those (1)

Richard_at_work (517087) | more than 4 years ago | (#32190526)

I don't think so - if you read the article, this decision was based on very specific issues with the sale of the software to the client, specifically that the seller gave direct advice to the client which the client based their decision to purchase on.

Re:Yay! finally some accountability for all those (2, Insightful)

Dumnezeu (1673634) | more than 4 years ago | (#32190320)

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 fraud (false advertisement) and their application was breaking all the time - it wasn't just a few accidental bugs, it was a complete lack of interest in providing the customer with a functional product.

Re:Yay! finally some accountability for all those (0)

rapiddescent (572442) | more than 4 years ago | (#32190326)

Interestingly, the sale of goods act would cover open source software - even if the price was zero. However, it is very likely that a developer could only be sued for GBP 0. The England & Wales and Scots Legal systems tend to support the little (or wee) man and wouldn't allow a huge writ to sue a hobbyist unless they were making buckets of money out of selling poor quality software.

Section 14 in the Sale of Goods act determines quality and it falls into:
1. were the goods or services fit for purpose?
2. were the goods or services of satisfactory quality?

fit for purpose statement really concentrates on the act of sale. In open source that would be the claims made by a website, or statements by the developer about the product, perhaps in a blog.

satisfactory quality (sometimes known as merchantable quality) would focus on the expectation of quality. which in front of a jury would probably get nowhere with an open source bit of software even if a service contract was in place.

where this case is very interesting is that the standard terms and conditions (i.e. the EULA) was once again not enforced or recognised and fell foul of the Unfair Contract terms Act. Are you watching Microsoft? because this applies to you and the EULAs for Windows 7.

Re:Yay! finally some accountability for all those (3, Informative)

Neil_Brown (1568845) | more than 4 years ago | (#32190424)

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:

  • there is a contract (since a licence is a bare permission, and not a contract - but not all documents claiming to be licences are necessarily licences, and may, in fact, be contracts)
  • there is a sale, since s2, SOGA77, provides that "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", and, if there is no exchange of money, it is questionable whethere there would be a "money consideration".
  • Similarly, in the case of a physical download, it is questionable whether there has been a "transfer [of] property".

However, it is very likely that a developer could only be sued for GBP 0. The England & Wales and Scots Legal systems tend to support the little (or wee) man and wouldn't allow a huge writ to sue a hobbyist unless they were making buckets of money out of selling poor quality software.

This is, perhaps, a risky statement, given that a contractual remedy should put the detrimented party in the position as if the contract had been properly performed, unless the measure of damages for a claim in tort, for which the remedy is the preservation of the status quo (i.e. putting the detrimented party in the position as if the tortious act had never happened).

As such, the fact that the licensor has made very little from the software does not mean that the licensee could only receive very little in terms of compensation, unless the licensor has an enforceable limitation of liability clause - and, a judge may be more inclined to find that, where the product was distributed without charge, that such a limitation was reasonable. However, without a limitation of liability clause in the agreement, it might be harder to find grounds to limit recovery, where the loss suffered by the licensee, as a result of a contractual breach, was significant.

However, the presence of a bug, or the failure of a piece of software to perform in a particular manner, is not necessarily a contractual breach - it would depends on the terms of the contract.

Section 14 in the Sale of Goods act determines quality

However, s14 only applies to business-consumer contracts ("Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality."), and so one would need to assess whether the hobbyist distributing code a business - merely charging for an item does not make one a "business".

In other words, it depends; there are likely to be situations in which SoGA does apply to open source software (or, to my mind, a physical item embodying open source software, which might then give rise to claims against the software embodied in that product directly), but also many situations in which is does not.

(IAAL, who does a lot of work with Free software, but, these are just my personal views)

Re:Yay! finally some accountability for all those (1)

the_womble (580291) | more than 4 years ago | (#32190512)

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?

Re:Yay! finally some accountability for all those (1)

Neil_Brown (1568845) | more than 4 years ago | (#32190716)

How could there be a money consideration without payment? You says its questionable, but surely "money consideration" must require a payment.

Probably - and it would make sense - but, I wasn't sufficiently sure that this was the case to make an absolute statment.

Another thing with open source, is you often do not download it from the author. ... 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?

This is another clear example of why SoGA does not sit comfortably with software, being, as it is, phrased in terms of "transfer of property". In a non-digital world, equating notions of property and ownership is relatively straightforward; when one transfers a box of eggs to another under a contract of sale, the intention is to transfer the ownership of that box of eggs, and so physical transfer mimics (to an extent - since title may not pass with delivery) the transfer of ownership - a transfer of possession without a transfer of ownership/title is generally considered a loan, just as retention of possession without ownership under a right is generally considered a lien.

Of course, this does not work well in a digital world, where many distributors are wishing to avoid a transfer of ownership. However, to my mind, the mechanism used for the transfer is still largely irrelevant - the fact that you might buy some eggs from me, and I choose to deliver them to you myself, or else deliver them to DHL, which delivers them to you, or else I give them, does not affect the transfer of title; this passes from me to you, even though I use an intermediary to effect the transfer of possession.

When one looks at the GPL, for example, there is no right to sub-license; the owner of a particular copyright work within a GPL'd file licences that work directly to the recipient, even if there are many layers of transfer in between. No matter what transfer mechanism is used, the licence is still granted from the owner to the eventual recipient, directly.

Re:Yay! finally some accountability for all those (5, Interesting)

Chris Newton (1711450) | more than 4 years ago | (#32190478)

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:

  • software can be covered by consumer protection legislation;
  • those selling software cannot escape responsibility for the related obligations just by putting small print in a contract of adhesion; and
  • liability can exceed the original cost of the software where the damages are greater.

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.

Re:Yay! finally some accountability for all those (1)

delinear (991444) | more than 4 years ago | (#32190528)

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, but the key point is someone just downloading a free piece of software does not automatically enter into a contract of sale, even if they have to agree to a EULA or similar before they use the software. Unless the user is giving something back to the developer, it's simply not a sale, and SoGA is very specific in that it can only apply to sales and can not be extended to gifts.

Re:Yay! finally some accountability for all those (3, Insightful)

Neil_Brown (1568845) | more than 4 years ago | (#32190652)

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.

So, no, cash is not required, since cash is a specific form of money, but non-money consideration is insufficient.

(Again, IAAL, but, this is not legal advice!)

Re:Yay! finally some accountability for all those (0)

Anonymous Coward | more than 4 years ago | (#32190422)

Not really.

CAR ANALOGY- for the RTFA impaired.

After a quick test-drive around the block...

"So, you say it'll get at least 32 MPG and be reliable for my daily commute?"

"Sure thing! This baby will save you gas money like you can't believe and is as reliable as gravity! You'll cut your commute time in half, traffic notwithstanding."

"Sounds good to me. What about servicing and maintenance?"

"You get an operator's manual and I'll throw in a full repair manual as well, so you'll have no problems keeping it running. Just sign here..."

LATER, no manual insight, a gas bill showing average gas milage in the single digits, exhaust billowing smoke after several breakdowns on the highway with only 2,000 miles on the odometer...

"You sold me a lemon along with a bill of goods! You didn't even give me the promised manuals! Here's your damned clunker- I want my money back and recompense for the repair bills!"

"Sorry, all sales are final and I'm certainly not going to pay for repairs. The contract says it's your responsibility to make sure the vehicle is fit for the intended use."

"What?! But you told me... I'll sue!"

And the buyer did just that. The Judge said that the seller had been misleading when selling the car. The buyer won. The end.

Re:Yay! finally some accountability for all those (2, Insightful)

zonky (1153039) | more than 4 years ago | (#32190162)

This is about how software is sold and marketed, not how it is written.

Re:Yay! finally some accountability for all those (1)

zonky (1153039) | more than 4 years ago | (#32190176)

Not only does the UK acts say it has to be fit for purpose, but also that it should be durable for what a reasonable person would consider reasonable. That should mean that patching for security etc, should be available for a reasonable period as a right.

Re:Yay! finally some accountability for all those (3, Insightful)

Neil_Brown (1568845) | more than 4 years ago | (#32190468)

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, some point after the sale, became exploitable in the real world. However, in this case, I'd expect a court to take a position of what is reasonable, and to consider that a possible, but, highly unlikely, threat, was not a defect, unless the product was sold as being "secure against all known threats", or the like.

Re:Yay! finally some accountability for all those (0)

Anonymous Coward | more than 4 years ago | (#32190182)

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.

Provide any software they want? Nobody forces you to buy anything!

I think this is entirely idiotic. Basically the hotel was too dumb or lazy and bought software without looking at it. That's entirely their fault in my opinion.

I mean "Red Sky sold hotel management software to London's Kingsway Hall Hotel but the Hotel found problems with it almost straight away." says it all: they didn't even take a good look at what the software does and bought the proverbial pig in a poke.

They bought the software even though they claim the demonstrations were horrible. They want to be compensated because they failed to correctly assess the software they bought. The hotel is run by idiots (apparently so is the court).

I say the software maker should sue the hotel into the ground for libel, ignorance and general stupidity.

Re:Yay! finally some accountability for all those (1)

blane.bramble (133160) | more than 4 years ago | (#32190200)

It all depends on what was said at the time - maybe the demo went badly but the software provider says "oh yes, it will do that in the final version", or made other such promises about the performance and ability.

Re:Yay! finally some accountability for all those (0)

Anonymous Coward | more than 4 years ago | (#32190242)

If the hotel believed that, they are unfit to run a business.

Would you believe some random salesman if he said that? Without putting it into writing? I certainly hope not; or I do if you are a competitor ;)

Unless of course it was put into writing and not delivered. But then it would be a regular breach of contract not ... whatever this is.

Re:Yay! finally some accountability for all those (1)

totally bogus dude (1040246) | more than 4 years ago | (#32190458)

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?

Re:Yay! finally some accountability for all those (2, Insightful)

blane.bramble (133160) | more than 4 years ago | (#32190556)

No, but I work in IT and know how to ensure that I am not being misled. Now look at it the other way round, you call a hotel to book a room, they tell you it will be 5 star, have a TV, en-suite, king size bed, etc. etc. Now when you get to the hotel to use the facility, it's nothing like you were told - is it your fault for not checking (in person) that the room is suitable *before you turn up to use it*?

Re:Yay! finally some accountability for all those (2, Insightful)

delinear (991444) | more than 4 years ago | (#32190576)

Of course, because it's so difficult to confuse the layman with technical jargon - the layman always being so technically astute. Come on, there are dozens of ways in which the salesman could have spun a bad demonstration to alleviate the worries of the customer - maybe telling them that it's slow because it's running over the internet on a machine back at the office but it'll be quicker when it's installed locally, or that he's using an out of date version and the bugs aren't present in the new version, etc. - that's his job, and consumers shouldn't be made to suffer just because they had the misfortune of dealing with a particular proficient liar at the point of sale. I'm not a salesman but even I could come up with several plausible reasons to explain away a poor demonstration that the average consumer would buy. If this law didn't exist then it wouldn't be so reasonable to take these claims at face value and you'd expect them to explicitly request they be placed in the contract, and they'd be at fault if they failed to do so, but the fact is that the law does exist so it's entirely reasonable to take the claims at face value, knowing you have an established legal recourse if they turn out to be false. That's exactly why the law was formulated, to make such transactions more efficient without having to engage independent experts and legal representation every time you buy something.

Re:Yay! finally some accountability for all those (1)

noidentity (188756) | more than 4 years ago | (#32190336)

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).

Re:Yay! finally some accountability for all those (3, Insightful)

delinear (991444) | more than 4 years ago | (#32190580)

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.

Re:Yay! finally some accountability for all those (2, Interesting)

Z00L00K (682162) | more than 4 years ago | (#32190494)

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 the administration.

Of course - there are no tools available to understand the business model of a customer to be able to create a workflow in a software solution to suit that customer. That takes time and requires a study of work process. But that doesn't mean that it can't be done in a different way in a new software since it leaves room for improvement.

Of course - there will always be bugs and quirks, the important thing is to make sure that the bugs and quirks aren't fatal for the operation. Flexibility of an application also allows the users to handle the application in an unexpected manner which can cause problems. However a too strict application will cause more trouble.

Testing is important, but it's important to realize that unit testing can be a problem as well as a help. A minor software change can cause a cascade failure of the tests cases written causing a minor change of the core code to be a major overhaul of the test cases. This may of course be caused by bad overall design, or bad test case design. At some time in the lifecycle of a solution it's time to raise the level from the individual modules to the system as a whole. Module testing can in no way save an application from troubles caused by a bad overall design.

System verification is always late in a project, and since time is running short at the end of a project that phase is often pressed through in a hurry leaving design mistakes big as grand canyon open for the future. Performance testing is also something that is left to be resolved later. Of course - you can't fix all performance issues during development and system verification - just give it the best shot. It takes a lot of experience to design a system that scales well - however sometimes it contains some bottlenecks. The skill is to identify and hide the bottlenecks in the best possible way, usually by doing background processing unless a redesign can resolve the performance problem. However some performance problems are hard to resolve and others are expensive in the cost of man-hours and application complexity. An example would be a statistics module executed quarterly in an organization. That usually uses a predefined set of rules and is ideal for background execution.

An example of a bad solution when it comes to user experience is the fact that in Windows when you have mounted drive on a remote server over a slow connection it can slow down some operations incredibly since the computer "needs" to address and get a response from that drive before it permits you to continue a simple operation like a "Save As..." even though you didn't have that drive in mind.

Applies to consumers only (3, Interesting)

Neil_Brown (1568845) | more than 4 years ago | (#32190116)

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 (4, Interesting)

Znork (31774) | more than 4 years ago | (#32190202)

It sounds like it would be applicable against post-sale removal of features as well, as in the Sony PS3 other os case.

Implications! (0, Flamebait)

Zardus (464755) | more than 4 years ago | (#32190120)

If this is upheld and catches on, it could have pretty horrid implications world-wide, especially with how willing people are to litigate against companies (such as Google) that are actually based in a different country but have presense in the litigator's country by virtue of internet access....

Re:Implications! (5, Insightful)

QuantumG (50515) | more than 4 years ago | (#32190204)

What part of the word "sale" do you not understand?

Re:Implications! (0)

Anonymous Coward | more than 4 years ago | (#32190660)

the 's'. I understand ale very well.

Re:Implications! (2, Insightful)

KDR_11k (778916) | more than 4 years ago | (#32190208)

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? (0)

Anonymous Coward | more than 4 years ago | (#32190392)

For my money, It seems that 90 % of low cost ( what else is there )Chinese
crap either breaks, falls apart in the wash or poisons my kids.
Let's go after those scamming fuckers and tariff them out of business.

Re:Implications! How about chinese crap? (3, Interesting)

St.Creed (853824) | more than 4 years ago | (#32190728)

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... (4, Insightful)

Joce640k (829181) | more than 4 years ago | (#32190284)

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! (1)

new500 (128819) | more than 4 years ago | (#32190612)

Giving benefit of doubt, you're being sarcastic i hope. Here's the classic reference, from 1955: http://en.wikipedia.org/wiki/Entores_Ltd_v_Miles_Far_East_Corporation [wikipedia.org] Which actual findings are admirably geeky, relying as they do in "implied ACKs" (my phrase, which i think fits nicely, if you read the case) Which same also neatly renders silly your phrase: "presence in . . country by virtue of". Quite apart from personally disliking teleportation, the point fo the matter is the communication, not "presence". Lawyers, IMNSHO, the really good ones at least, i believe pioneered concepts of AI, way before Stanford got into it :-)

In other news (5, Funny)

Anonymous Coward | more than 4 years ago | (#32190140)

Mr. Ballmer woke up in a sweat in the middle of the night, not knowing exactly why...

Re:In other news (1)

jimthehorsegod (1210220) | more than 4 years ago | (#32190266)

Mr Ballmer wakes in a sweat in the middle of everynight...

What about OSS (-1, Redundant)

pehrs (690959) | more than 4 years ago | (#32190158)

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.

The main issue is that if commercial offered software has this kind of liabilities it will very quickly be extended to OSS software offered for free. And who wants to send in a patch to the Linux kernel if it means GM can sue you for 100 000 000 when their factory breaks down?

I would be very careful about rejoicing this move. It can be a very dangerous one.

Re:What about OSS (1)

zonky (1153039) | more than 4 years ago | (#32190164)

Sale of Goods would not apply, if no goods were sold.

Re:What about OSS (1)

Andorin (1624303) | more than 4 years ago | (#32190186)

I don't think this would apply to OSS. Reason one:

'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 (4, Insightful)

zonky (1153039) | more than 4 years ago | (#32190194)

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.

Re:What about OSS (2, Funny)

Anonymous Coward | more than 4 years ago | (#32190296)

From now on the purpose of all code sold will be "It juggles ones and zeroes."

Unofficially, it might do something useful.

Re:What about OSS (1)

St.Creed (853824) | more than 4 years ago | (#32190738)

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.

Re:What about OSS (2, Funny)

value_added (719364) | more than 4 years ago | (#32190332)

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 (4, Insightful)

Tapewolf (1639955) | more than 4 years ago | (#32190206)

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.

Re:What about OSS (1)

Arancaytar (966377) | more than 4 years ago | (#32190216)

if commercial offered software has this kind of liabilities it will very quickly be extended to OSS software offered for free.

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.

Re:What about OSS (1)

St.Creed (853824) | more than 4 years ago | (#32190760)

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.

Re:What about OSS (2, Insightful)

mjwx (966435) | more than 4 years ago | (#32190220)

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.

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 I can sue if the product does not meet requirements while neither apply to software. This one sided arrangement needs to be fixed.

By the same token if someone uses their Toyota Hilux to run over me, I cannot sue Toyota because their product was misused. Current laws that govern sales protect manufactures/producers against what you are concerned about, companies aren't sued if their product is found to be defective, they are withdrawn from sale. Companies are only sued if they knowingly released a defective or dangerous product.

"Oh-boy, oh-boy, my favourite" (1)

savethelecture (997728) | more than 4 years ago | (#32190166)

Somebody try and convince this judge that the BSOD is a FEATURE and not a defect.

Re:"Oh-boy, oh-boy, my favourite" (0)

Anonymous Coward | more than 4 years ago | (#32190256)

Also caused (in the vast majority of cases) by hardware or software NOT attributable to Microsoft.

Re:"Oh-boy, oh-boy, my favourite" (2, Insightful)

bloodhawk (813939) | more than 4 years ago | (#32190264)

The BSOD is in fact a feature, sorry I know what your getting at but the BSOD is in fact the Kernels Diagnostics dumping ability providing information about an error that has occured, anything from hardware failure to drivers or OS bug.

it's about time (3, Interesting)

Anonymous Coward | more than 4 years ago | (#32190236)

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 (1, Informative)

neuroxmurf (314717) | more than 4 years ago | (#32190428)

I can tell you've never read the "warranty" that comes with your car or your washing machine. They say precisely that.

Re:it's about time (5, Informative)

Chris Newton (1711450) | more than 4 years ago | (#32190552)

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.

Re:it's about time (1)

delinear (991444) | more than 4 years ago | (#32190666)

Honestly, all that's needed is more transparency. There are times when I'm happy to buy something cheap and buggy because it's not mission critical and it saves a lot of money, there are other times when I need iron cast guarantees about the quality of the software. The fact that some vendors artificially inflate the claims of what their software can do is harmful to the industry as a whole - it devalues the better software which is forced to try and compete on an uneven playing field, it gives consumers the impression that all software is rubbish, it tarnishes the reputation of the companies making the false claims - just tell people what the software can and can't do and let them decide which is the best fit in budgetary terms and what compromises they're prepared to make and everyone will be better off (well, apart from the salesmen making the false claims I guess, but that's no great loss).

Is this just software or a more general case? (1)

alfredos (1694270) | more than 4 years ago | (#32190270)

It sounds like a company was simply sold a product that simply didn't fulfill the expectations raised by the seller. It could have been a car (ok, sorry, bad car analogy).

not a good thing. (1)

timmarhy (659436) | more than 4 years ago | (#32190312)

if you think software is expensive now, wait till every piece of software needs liability insurance.

Not atypical of the UK and the EU... (5, Interesting)

Kr3m3Puff (413047) | more than 4 years ago | (#32190334)

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.

It's "His Honour"! (1, Troll)

The Grassy Knoll (112931) | more than 4 years ago | (#32190362)

"his Honor"

Honour Honour Honour Honour Honour Honour Honour Honour!

Gah!

.

step-by-step guide for Americans (5, Insightful)

FuckingNickName (1362625) | more than 4 years ago | (#32190376)

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.

Re:step-by-step guide for Americans (0)

Anonymous Coward | more than 4 years ago | (#32190400)

Which is why SAP is known for their high quality!

Re:step-by-step guide for Americans (1)

dandart (1274360) | more than 4 years ago | (#32190492)

/s/give away/go away/g

Re:step-by-step guide for Americans (0)

Anonymous Coward | more than 4 years ago | (#32190704)

Here it means "give away" your software, as in don't charge for it.

Hence why: (1, Offtopic)

dandart (1274360) | more than 4 years ago | (#32190438)

They forgot the clause in almost all free software programs, similar to this:

"There is no warranty for the program, to the extent permitted by applicable law. Except when otherwise stated in writing the copyright holders and/or other parties provide the program “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the quality and performance of the program is with you. Should the program prove defective, you assume the cost of all necessary servicing, repair or correction."

It would be capitalised, but oh, Slashdot.

Re:Hence why: (1)

bazorg (911295) | more than 4 years ago | (#32190646)

One thing that bugs me about that clause you just quoted is that in day to day life you visit a company website where they state the purpose of the software; then the salesperson confirms that purpose and tries to prove the benefits of the software; then you read their ads on a magazine stating the purpose of the software... then when you are about to sign the contract, they say "this software is not fit for any purpose, therefore you're SOL". I would not be too bothered if the courts said that the clause you quoted is null and void.

Re:Hence why: (1)

dandart (1274360) | more than 4 years ago | (#32190684)

Well, if you're going to advertise that this is definitely OK for the job, then fair enough.

Re:Hence why: (1, Informative)

Anonymous Coward | more than 4 years ago | (#32190678)

Such clauses in licences and contracts mean nothing in Europe. Many commercial software houses put clauses like that in their legalese to intimidate people, but judges strike it out all the time. A contract (or licence, but in much of Europe there is no difference between contracts and licences) is subservient to the law. If the contract says X and the law says Y and you find yourself in court then Y will happen. The main reason free software programmers don't need to worry is that as long as you don't sell your stuff the fitness-for-purpose laws don't shift into gear.
Let's do another example, not related to software but artistic material. Suppose a free licence stipulated that derivative works should come to fall under the same licence. However, the law of the land may state that you can only exercise your copyright on works if you potentially stand to make a profit from them. In a recent court case involving this, the judge did indeed follow the law and decided that since the artist had never shown any intention of making a profit from his work, he couldn't exercise his copyright on the work.
Morale: you can't just read the software licence if you want to know what everyone's rights are. You have to know the law too, and remember that legally, you do know the law, in the most exquisite finest detail.

RTF*findings* please! (scaremongering dispelled) (4, Informative)

new500 (128819) | more than 4 years ago | (#32190538)

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 (3, Interesting)

zero0ne (1309517) | more than 4 years ago | (#32190692)

The perfect law to use when going after all the fake AV software companies.

Bad headline (4, Informative)

jazman (9111) | more than 4 years ago | (#32190708)

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.

Difference (1)

mseeger (40923) | more than 4 years ago | (#32190712)

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 (4, Insightful)

crimperman (225941) | more than 4 years ago | (#32190722)

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

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