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Conference hydra::amiga_v1

Title:AMIGA NOTES
Notice:Join us in the *NEW* conference - HYDRA::AMIGA_V2
Moderator:HYDRA::MOORE
Created:Sat Apr 26 1986
Last Modified:Wed Feb 05 1992
Last Successful Update:Fri Jun 06 1997
Number of topics:5378
Total number of notes:38326

3742.0. "Software Developer's Liability" by MILKWY::JANZEN (Tom 228-5421 FXO/28) Wed May 02 1990 19:12

    Hi
    Does anyone know of anyone being sued for damage done or expectations
    disappointed by public domain software?  for example, if someone used a
    program from a redistributable library of software.  Let's say the
    program is a file management utility, and it deletes everything on the
    hard disk, or trashes the directory on the hard disk, thereby deleteing
    files that weren't backed up (does the law recognize that backing up
    all media is common sense? I bet not) or anyway making it necessary to
    rebuild the hard disk which could take hours, thereby causing lost time
    (and time is money).
    Or someone has a robotics programs and it is used to make a robot hit
    someone in the head, is the writer of the software liable?
    Or a crummy picture demo with no error checking munges files.
    Or someone uses an amiga to monitor a heart patient (like in that Nova
    program where they used an amiga to show non linear brain and heart
    rhythms) and it fails and the patient dies because no one noticed they
    went into arhythmia or something.
    Don't play lawyer, just let me know what you've heard third hand ;-)
    Tom
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3742.1 CYA CRISTA::CAPRICCIOKrusty was framed!Wed May 02 1990 19:4219
    I won't attempt to play lawyer (I *hate* laywers ;^) and I don't know
    about the public domain, but I suppose you could just do as the
    commercial folks do (extracted from an actual limited warranty):

         <your name here> makes no warranties, either expressed or
         implied, with respect to the software program recorded on the
         diskette or the instructions, their quality, performance,
         merchantability or fitness for any particular purpose. The
         program and instructions are sold "as is". The entire risk as
         to their quality and performance is with the buyer. In no
         event will <your name here> be liable for direct, indirect,
         incidental or consequential damages resulting from any defect
         in the program or instructions, even if <your name here>  has
         been advised of the possibility of such damages.

    Sheesh! And I had to open the box (thus voiding all possibilty of
    return) to find that out...

    Pete
3742.2warranty or no . . .LEVERS::MEYERLost in CyberspaceThu May 03 1990 04:0410
    	The warranty quoted in .1 is indeed a good example of a notice
    which any programmer should include with - and within - the program.
    It is NOT proof against suit should you provide a truely disasterous
    product but it will cover you against most claims. If your code
    is advertised as doing something yet it fails to do that, instead
    doing something dramatically, harmfully, and obviously intentionally
    different then you are still liable. If the user can prove that
    you intentionally sold code that you knew would lock up any user's
    computer and make it totally unusable then you are in big trouble.
    But you knew that, right ?
3742.3third-hand and speculationSAUTER::SAUTERJohn SauterThu May 03 1990 11:3330
    Recently I was asked to help with some software for controlling an
    Uninteruptable Power Supply in a hospital environment.  I declined
    due to the risk---if the UPS fails, and somebody dies, a local jury
    might decide it's my fault.
    
    In talking to the person who asked for my help I learned that there is
    a need in the industry for this kind of software, but nobody is willing
    to write it, for the same reason that I wasn't.  The company that she
    buys the UPS boxes from told her that if she wanted to write the
    program that was up to her, but they wouldn't have anything to do with
    it.
    
    I suggested that she write the program and then place it in the public
    domain.  The hospital could then acquire it without involving her, and
    get only the hardware from her.  That would, I felt, protect her from
    lawsuits.  The hospital didn't want to do that, since the hospital
    wanted the vendor (her) to be responsible for every aspect of the
    system.
    
    My conclusion is that placing software in the public domain does shield
    you from liability, at least to some extent, else the hospital would have 
    been willing to use public domain software.
    
    There is, or was, a rule that if a doctor happened upon an automobile
    accident and stopped to render assistance, he could not be sued for
    malpractice, under the theory that he was simply being a "good
    Samaritan".  I don't know of any rule of law that applies this
    reasoning to public domain software, but the situations are similar
    enough that you might have an argument.
        John Sauter
3742.4It's a mess!ULTRA::KINDELBill Kindel @ BXB1Thu May 03 1990 12:1914
    Re .3:
    
    John's note points up a number of "real-world" considerations.  In this
    litigious environment, the concept of "caveat emptor" (let the buyer
    beware) has been replaced by "caveat vendor" (let the SELLER beware). 
    Any happy medium between these extremes seems to have evaporated.
    
    Software warrantees have become highly restrictive (I'm particulary
    unimpressed with Precision Software's version) and effectively use a
    lot of words to say, "you're on your own, sucker".  If/when a problem
    arises, the only recourse is to sue.  Plaintiffs' attorneys (and
    juries) then go after ANYONE who MIGHT have had any responsibility for
    the failure of the software to perform as the customer desires, even if
    the requirement wasn't an intended use of the software.
3742.5Insurence is designed for libility.VCSESU::MOORETom Moore MRO1-3/SL1 297-5224Thu May 03 1990 13:019
    It seems to me that libility is what insurence is for. I would guess
    that in a case like that with the UPS, One approach would be to have a
    single licence insurence policy written and the cost of that added
    directly to the cost of the sale. The hospital would get real protection
    and the vender would be protected. I would guess single case policies
    are hard to get written and that its just a case of money.

    -Tom-
    
3742.6lawers = decline of the american empireMQOFS::DESROSIERSLets procrastinate....tomorrowThu May 03 1990 13:168
    The previous replies indicate what may be seriously wrong with your
    country (and mine too to some extent).  So just wait for a Japanese
    companny to write the software and buy it from them.
    
    Off the soapbox and into my toys.
    
    Jean
    
3742.7guns, money and lawyers; deep pocketsSAUTER::SAUTERJohn SauterThu May 03 1990 13:5712
    re: .5
    
    I did suggest liability insurance to her, with the cost passed through
    to the hospital.  I also suggested she talk to a lawyer, since the
    legal system may have a standard way of dealing with this kind of
    situation.  I don't know if she did either of these things.
    
    I doubt a Japanese company will build such a product either, for the
    same reason.  Think how much money a jury in Detroit would award a
    bereaved parent if they knew that a Japanese conglomerate would be
    paying.
        John Sauter
3742.8There were possible liabilities at one timeYUPPIE::WILSONTony, the HOSS TRUMPETThu May 10 1990 15:486
    AT one time, Digital would not supply equipment or software to control
    nuclear facilities for legal reasons.  There were other situations,
    also, but I don't remember what they were.
    
    I don't know if this is still the case.  If not, you might find out
    what arguments were used to overcome the reasoning.
3742.9limited liability for ALL partiesLEVERS::MEYERLost in CyberspaceFri May 11 1990 05:167
    	I'm sure part of the logic involved the liability limitation
    in that special situation. If Seabrook incinerates everything from
    Boston to Bangor the liability limit would provide a pitance to
    every survivor/estate. If it only takes out the local beach then
    the fund would allow for several $10Ks per injured party. Without
    such a limit it would be impossible to insure the #@$% things. And
    you thought you were protected! ;-)