Software can be considered 'goods' for purpose of commercial agent rules – High Court Software suppliers can be forced to pay damages to self-employed intermediaries they contract with to promote their products under UK commercial agents regulations, according to a recent High Court ruling. The High Court ordered Computer Associates UK Ltd (CA) to pay The Software Incubator (TSI) £475,000 in compensation under …
Maybe this could also demolish the contractual scams by media corporations too e.g. 'record' deals.
This shouldn't just affect the production side, but the retail side too!
If software is a good, then how can this nonsense of a licensed copy of software exist, rather than sold as a fully owned good at the instant of purchase?
I would appear obvious that a copy of anything virtual or physical, not of a living creature's body or possession, cannot be theft, despite all the state smoke & mirrors issued privileges, that includes physical copies constructed from your own property or unclaimed abandoned goods.
What I have trouble accepting is that on the one hand, the software I buy is under license, but on the other, software makers generally absolve themselves of all fault in case of trouble.
This one-way deal has been going on for too long now. I pay for my software, if you don't accept responsibility, then you damn well better not tell me it's not mine to do with as I please.
Your license payment is for access rights, not ownership. When you use the car park, you don't own the parking space, you have only purchased the right to use it, and those rights are constrained in multiple dimensions (including indemnification of the car park owner).
If the license terms paying-customers are willing to accept include full indemnification of the vendor from all liability claims, the vendor would be crazy not to include those terms. If a vendor offered licenses in different flavors, ranging from full-indemnification to full-liability, and then priced those options to accurately reflect the difference in business insurance costs, the only option anyone would buy would be the full-indemnification version. Would you pay a 10,000% uplift for a software license just to preserve your right to hurl a sueball later if things go pear-shaped? Probably not.
Car parks typically have a sign up say they the owner of the car park is never responsible for damage to your car, even if it is their fault. Now they can say this until they are blue in the face (or blue in the metal sign usually) but it bollocks. If they drive their truck into your car they are liable. Their "license to use" the car park space with liability is not valid.
So there should be no reason why courts should accept the EULA which says "we know this SW is totally shit but that's life buddy, live with it, we'll take your money and we'll promise nothing in return"
If this court case can be made to stick then SW comes under the sale of good act and must therefore be fit for purpose. Since SW can't wear out, anything that is wrong with it must be a design fault and therefore the vendor must be liable for bugs.
"Would you pay a 10,000% uplift for a software license just to preserve your right to hurl a sueball later if things go pear-shaped? Probably not."
Yes, i would do that. Happy to pay a 10,000% uplift on the price I agreed to pay for the Windows 10 that came pre-installed (and unwanted) on my most recent PC. The price I agreed, of course, being zero.
:)
Once again we have a bad Real-World metaphor.
I don't care about car parking. When I take a parking space, nobody else can have that one. That is not the case with software. Everyone can download the app once I have it.
The issue with EULAs is not that the vendor will have trouble if it accepts responsibility, it is that the vendor accepts NO responsibility, although you pay full price. Thus shoddy programming practices are the norm. We're over 30 years into the IT industry, and we're still subject to bugs that are due to the absence of data control or validation. This is not acceptable.
There is a middle ground to be found, is what I'm saying, and if we end up with less software developers because of risks, it means that those that still develop will be better, because they will have learned to write better code.
back when a 1200BPS modem was bleeding edge, a friend of mine worked at a company that took delivery of some bespoke software via a multi-hour phone call on such a modem. A bit longer than it would have taken for a tape to be air-freighted to them, and also of course more expensive.
Thing is, in their jurisdiction, the delivery on tape would have classified such software as a "good", and subjected them to a tax on the sale, whereas bits on a wire did not. IIRC, they saved some tens of thousands of dollars. Around that time I was living in a jurisdiction where such angel-dance hairsplitting was quite the rage. Sandwich in a cafe? taxed. Sandwich in cellophane? Not. Newspaper at news-stand? taxed. Newspaper from vending machine? Not.
Madness. Not likely to fade completely in my lifetime. The law is no more likely than the programming profession to produce fool-proof code. Fools are very good at gaming it.
First, software patents should be invalid - particularly the "do it on a computer" and "do it in the cloud" variations.
Second, software APIs should never be considered as a valid method of Copyright and all public facing interfaces must be fully and publicly documented.
Third, the software's license type should impact the liability of the provider, vendor, and developer:
A(ble) copyleft open source type of license (i.e. GPL) would be the most difficult to receive damages for and the safest for developers and vendors, though not as remunerative in and of itself.
B(asic) [B(uilder) or B(usiness)?!?] copyright open source license (i.e. BSD) would more often be the middle ground - but only so long as source code and APIs are provided and documented. This would be riskier but there's plenty of room for "special sauces" mixed with closed proprietary code.
C(rap) [uh, C(losed) or C(ommercial)] proprietary licenses would imbue the vendors and developers with the most liability - with criminal as well as civil penalties. Big risk for big bugs are potentially a boon; yet may often be economically nonviable. Volkswagen C level executives would find life a whole lot different for awhile... but the software engineers could reduce their own liability by refusing to perpetrate fraud, (presuming management didn't have software modified elsewhere).
D(ead), D(eniable), D(eactivated), D(angerous), and D(umped) software might be thrown together into another category altogether. If a company isn't will to support the software, (especially on the machine originally deployed), why should they be allowed to profit from said software anymore? If a company is not willing to fix bugs, (typically for a fee for abandonware), then pertinent code should be released. Definitively as "use at your own risk" category. Perhaps closed proprietary code should be held in escrow to be released after a period of time?
"Fit for use" may still be applicable. Many (most) D(igital) R(estricton) M(anagement) methods need to die a horrible death, and their disabling or removal should be required following the death or disability of the pertinent business(es).
P.S.
EULAs are worth less than the electrons to send a "click". If a company isn't willing to pay for a written agreement process, then a short universal public agreement favoring the consumer should have to suffice. The needed tort reforms would not allow attorneys to get involved in the process otherwise. If a company wouldn't agree to the public protections; then the required written agreements demanding the attorneys involvement will price them out of the market - except for the most lucrative of products and services!
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