Don Marti

Mon 18 May 2009 10:19:38 AM PDT

Arguing against maturity and accountability? Why?

Jim Zemlin at the Linux Foundation joins in writing an over-broad open letter against implied warranties for software.

The problem is that software as the subject of a transaction can be either speech or a device, or usually both. The kind of disclaimer that's appropriate for a speech product is not appropriate for something that the vendor intends to be purely a device.

When Grandma goes to the drugstore for her heart pills, the pharmicist doesn't get her to sign a form saying, "hey, I could have given you Ecstasy instead by mistake, but I disclaim all warranty." When you deal with regular people, and take their money, you have to be accountable. Every other industry can deal with the obligation of an implied warranty, and as software grows up, it's going to have to as well.

That’s what the American Law Institute is trying to capture here. For every chilling effect on a development site or a beta program, there's a slick software executive ripping off a user. I've seen enough of the latter from the customer side to understand the lawyers' perspective on this. The implied warranty needs to shut down the rip-offs but leave the development process alone. That line is what the ALI is trying to get at with the free/paid distinction. Maybe free or paid is not the right dividing line, but there needs to be one. The industry should be helping to set the line, not asking for a no-bag-limit hunting license on users.

A lot of software is speech, not product. If you participate in an online development forum, you don’t expect to get perfect code every time you do a “git pull origin” or install a proprietary beta, just as there’s no warranty that a drug that produces positive results in a medical journal will cure what ails you.

But a TiVo or a BMW with iDrive is a product, and no fine print should make it a non-product. The software industry is maturing and dealing with regular people on their own terms. And this industry shouldn’t make the same mistake the credit card industry did—arguing for one-sided terms until the whole thing started to collapse. Arguing for an unconditional right for fine-print-writing lawyers to protect their clients from the consequences of shipping broken products would be counterproductive. The software industry needs to clearly label software as either technical communication or actual product, and apply the appropriate level of liability to each. Eventually the users, and their lawyers, are going to impose some kind of implied warranty, and we should do it on our terms, applied to real products but not software as speech.