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.
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