Communications - May 2011

ware You Buy?” by Pamela Samuelson (Mar. 2011) made clear, software is not “sold.” Every EULA insists software is licensed and only the media on which it is recorded are sold; a series of court decisions, of which the Vernor v. Autodesk decision Samuelson cited is the most recent and one of the most conclusive, have upheld this stance.

This mischaracterization by Brenner is one of the keys to understanding how manufacturers of such shoddy goods get off essentially scot-free. If software were actually sold, the argument that it should be exempt from the protections of the Uniform Commercial Code would be much more difficult to maintain, in addition to other benefits thoroughly discussed elsewhere (including by Samuelson in her column).

Even though EULAs have been held enforceable, such a determination comes at the expense of the consumer. Almost without exception, EULAs have the effect of stripping the consumer of essentially all reasonable rights and expectations, compared with other goods and services. And while click-through and shrink-wrap EULAs have indeed been found to be enforceable, many reasonable people (including me) believe it should not be the case, since the vast majority of consumers do not read these “contracts” and do not understand their consequences. Brenner apparently does not consider them a significant problem.

Finally, Brenner simply reiterated his assertion that “Congress shouldn’t decide what level of imperfection is acceptable.” I agree. There are basic consumer protections that apply to all other goods, as embodied in the UCC. Neither a further act of Congress nor detailed specifications of product construction are required to give consumers the right to expect, say, a stove, properly used and maintained, will not burn down their house. The corresponding right of freedom from gross harm, like the other protections of the UCC, is not available for software, though it and they should be; Brenner apparently disagrees.

I emphasized good engineering practices in my February letter not because (as Brenner seems to believe) I thought they were sufficient to guarantee a reasonable level of product quality, but because they are well-established

means toward the end of meeting the basic standards of non-harm and reliability taken as a given for all other products. In any case, Brenner did not say why he thinks a different process should be used for setting functional safety and reliability standards for software than for other consumer goods. Simply asserting “software is different” is not a reasoned argument.

L Peter Deutsch, Palo Alto, CA
author’s Response:

Thanks to Deutsch for correcting my error. Software is of course licensed rather than sold. As Deutsch says, this is why UCC product-liability standards for purchased goods haven’t improved software quality. But his point strengthens my argument. I was explaining, not defending, the status quo, which is lamentable precisely because liability is weak. I cannot fathom why Deutsch thinks I’m indifferent to higher engineering standards for software. They represent the only basis on which a liability regime can be founded, even for licensed products.

Joel f. Brenner, Washington, D.C.

Correction

Sarah Underwood’s news story “ British Computer Scientists Reboot” (Apr. 2011) incorrectly attributed statements by King’s College London professor Michael Luck to King’s College London professor Andrew Jones. This has been corrected in the online article. We apologize for the error.

ACM’s
interactions
magazine explores
critical relationships
between experiences, people,
and technology, showcasing
emerging innovations and industry

Communications welcomes your opinion. To submit a letter to the editor, please limit your comments to 500 words or less and send to letters@cacm.acm.org.