What could have been done differently?

Tue Jan 28 20:16:08 UTC 2003

On Tue, 28 Jan 2003, Eric Germann wrote:

> 
> Not to sound to pro-MS, but if they are going to sue, they should be able to
> sue ALL software makers.  And what does that do to open source?

A law can be crafted in such a way so as to create distinction between
selling for profit (and assuming liability) and giving for free as-is. In
fact, you don't have Goodwill to sign papers to the effect that it won't
sue you if they decide later that you've brought junk - because you know
they won't win in court. However, that does not protect you if you bring
them a bomb disguised as a valuable.

The reason for this is: if someone sells you stuff, and it turns out not
to be up to your reasonable expectations, you suffered demonstrable loss
because vendor has misled you (_not_ because the stuff is bad).  I.e. the
amount of that loss is the price you paid, and, therefore, this is
vendor's direct liability.

When someone gives you something for free, his direct liability is,
correspondingly, zero.

So, what you want is a law permitting direct liability (i.e. the "lemon
law", like the ones regulating sale of cars or houses) but setting much
higher standards (i.e. willfully deceiptive advertisement, maliciously
dangerous software, etc) for suing for punitive damages.  Note that in
class actions it is often much easier to prove the malicious intent of a
defendant in cases concering deceiptive advertisement - it is one thing
when someone gets cold feet and claims he's been misled, and quite another
when you have thousands of independent complaints.  Because there's
nothing to gain suing non-profits (unless they're churches:) the
reluctance of class action lawyers to work for free would protect
non-profits from that kind of abuse.

A lemon law for software may actually be a boost for the proprietary
software, as people will realize that the vendors have incentive to
deliver on promises.

--vadim