Linked by Thom Holwerda on Mon 7th Mar 2011 23:21 UTC
Legal Well, how about some positive news to end this day? How about annoying the heck out of the Business Software Alliance? There's a new proposal for a directive on consumer rights in the EU, and in it, digital goods - software, online services, and so on - are explicitly defined as goods that are no different than any other good - like bread, watches, or cars. In other words, you would suddenly own the copies of software you buy, effectively declaring the EULA as a worthless piece of paper. Surprise - the BSA is not happy about this.
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Flawed analogy
by mrhasbean on Tue 8th Mar 2011 00:32 UTC
mrhasbean
Member since:
2006-04-03

The BSA argues that it is impossible to deliver software without bugs. In addition, the BSA states this would mean software makers would no longer be obliged to release patches and updates. How exactly their reasoning works there is beyond me.

The issue here is that the BSA is trying to put a spin on the word 'defective'. Not being defective does not mean a product is flawless; it simply means, according to the new directive as well as the existing legislation it consolidates, that a product must be able to perform its advertised and intended function. To illustrate - cars have 'bugs' too; the fit may not always be perfect, a cable may need replacement after 8000km instead of the advertised 10000km, and so on.


This is a very flawed analogy. If a car is delivered with a "defect" or a "bug", the manufacturer has a duty to consumers to correct that defect. Software bugs are defects, not "wear and tear" items like the cable you suggest. So their claims are 100% pertinent - if software was delivered with any bugs whatsoever it would be the software companies duty to fix that for whatever period the governing authorities saw fit, and it's impossible to deliver complex software with absolutely no bugs. These potential additional long term costs would drive up the base price of software - there would be cheaper licensed versions that would have "export" restrictions on them (ie. they can't be sold into the EU), and a more expensive EU version that you can own.

There would however be no requirement at all for them to deliver point releases of software with incremental "updates". When was the last time a car manufacturer sent out a letter asking everyone to bring in their car for a free update to maybe give them more fuel economy or a more responsive transmission for example? Both things that can be achieved with "software" in most modern cars.

And there would be no reason whatsoever for them to offer "upgrades" to current licenses - because it's not a licence any more. Again, equate this to your car analogy - trade-ins are of no use to them, and lower cost upgrades wouldn't give them a legal "out" for not fixing a bug in a particular version, so there would be no compelling reason to offer upgrades, in the EU, especially for the bigger companies that have a "monopoly" in their particular market space.

Be very careful what you wish for, you might just get it...

Reply Score: 5

RE: Flawed analogy
by sukru on Tue 8th Mar 2011 02:00 in reply to "Flawed analogy"
sukru Member since:
2006-11-19

Yes, people miss this aspect of the issue.

It's possible to write (almost) defect free software. It's done in health sector or at NASA, or some military areas. Nevertheless the cost of the software is significantly higher. $1000 per line of code higher.

If you'd like to pay for you laptop sums similar to an MRI machine, this is a good thing.

And there is the issue of open source software. Unless there is an exception, this effectively kills the "release early, release often" cycle.

Edited 2011-03-08 02:00 UTC

Reply Parent Score: 3

RE[2]: Flawed analogy
by WorknMan on Tue 8th Mar 2011 02:02 in reply to "RE: Flawed analogy"
WorknMan Member since:
2005-11-13

And there is the issue of open source software. Unless there is an exception, this effectively kills the "release early, release often" cycle.


Yeah, I was wondering what this would mean for FOSS, or even free (as in beer) software. Would you really want to release something for free in the wild if you knew that Joe Sixpack could sue you if it wrecks his computer somehow?

Reply Parent Score: 3

RE[2]: Flawed analogy
by tomcat on Tue 8th Mar 2011 02:40 in reply to "RE: Flawed analogy"
tomcat Member since:
2006-01-06

Yes, people miss this aspect of the issue.

It's possible to write (almost) defect free software. It's done in health sector or at NASA, or some military areas. Nevertheless the cost of the software is significantly higher. $1000 per line of code higher.

If you'd like to pay for you laptop sums similar to an MRI machine, this is a good thing.


Except people AREN'T going to want to pay what it would cost to write almost defect free software. But they're still going to want to sue you. Which seems like the wrong dynamic.

And there is the issue of open source software. Unless there is an exception, this effectively kills the "release early, release often" cycle.


I don't think it kills it. Just forces everyone to absorb the impact of new regulatory issues.

Reply Parent Score: 1

RE[2]: Flawed analogy
by Soulbender on Tue 8th Mar 2011 03:46 in reply to "RE: Flawed analogy"
Soulbender Member since:
2005-08-18

If you'd like to pay for you laptop sums similar to an MRI machine, this is a good thing.


Last time I checked laptops were considered goods and thus not excempt from any liabilities. Good thing stuff like microchip design and manufacturing is nowhere as complex as software...

And there is the issue of open source software.


That's the interesting questions now, isn't it. OSS licenses also waivers any liabilities so what about that? Will there be or is there an exception. Does it not, for whatever reason, apply to OSS?

Edited 2011-03-08 03:49 UTC

Reply Parent Score: 4

RE: Flawed analogy
by tomcat on Tue 8th Mar 2011 02:44 in reply to "Flawed analogy"
tomcat Member since:
2006-01-06

"The BSA argues that it is impossible to deliver software without bugs. In addition, the BSA states this would mean software makers would no longer be obliged to release patches and updates. How exactly their reasoning works there is beyond me.

The issue here is that the BSA is trying to put a spin on the word 'defective'. Not being defective does not mean a product is flawless; it simply means, according to the new directive as well as the existing legislation it consolidates, that a product must be able to perform its advertised and intended function. To illustrate - cars have 'bugs' too; the fit may not always be perfect, a cable may need replacement after 8000km instead of the advertised 10000km, and so on.


This is a very flawed analogy. If a car is delivered with a "defect" or a "bug", the manufacturer has a duty to consumers to correct that defect. Software bugs are defects, not "wear and tear" items like the cable you suggest. So their claims are 100% pertinent - if software was delivered with any bugs whatsoever it would be the software companies duty to fix that for whatever period the governing authorities saw fit, and it's impossible to deliver complex software with absolutely no bugs. These potential additional long term costs would drive up the base price of software - there would be cheaper licensed versions that would have "export" restrictions on them (ie. they can't be sold into the EU), and a more expensive EU version that you can own.

There would however be no requirement at all for them to deliver point releases of software with incremental "updates". When was the last time a car manufacturer sent out a letter asking everyone to bring in their car for a free update to maybe give them more fuel economy or a more responsive transmission for example? Both things that can be achieved with "software" in most modern cars.

And there would be no reason whatsoever for them to offer "upgrades" to current licenses - because it's not a licence any more. Again, equate this to your car analogy - trade-ins are of no use to them, and lower cost upgrades wouldn't give them a legal "out" for not fixing a bug in a particular version, so there would be no compelling reason to offer upgrades, in the EU, especially for the bigger companies that have a "monopoly" in their particular market space.

Be very careful what you wish for, you might just get it...
"

Under new regulatory action, the question really is "when does a defect become serious enough to force a fix?" With automobiles, for example, it's fairly obvious that safety problems require a fix. But what about a web browser crash or some kind of inconvenience bug. Both of these issues could happen in a marginal scenario which affects practically nobody, but it is important to a given user.

This is a really bad idea, in my opinion. It's going to make lawyers and judges arbiters of the quality of products.

Reply Parent Score: 3

RE: Flawed analogy
by Fergy on Tue 8th Mar 2011 06:52 in reply to "Flawed analogy"
Fergy Member since:
2006-04-10

This is a very flawed analogy. If a car is delivered with a "defect" or a "bug", the manufacturer has a duty to consumers to correct that defect. Software bugs are defects, not "wear and tear" items like the cable you suggest. So their claims are 100% pertinent - if software was delivered with any bugs whatsoever it would be the software companies duty to fix that for whatever period the governing authorities saw fit, and it's impossible to deliver complex software with absolutely no bugs.

Consumers don't expect their cars to be perfect. Consumers won't expect their software to be perfect. What they do expect are the promised features and performance of the product.
There would however be no requirement at all for them to deliver point releases of software with incremental "updates". When was the last time a car manufacturer sent out a letter asking everyone to bring in their car for a free update to maybe give them more fuel economy or a more responsive transmission for example? Both things that can be achieved with "software" in most modern cars.

You don't have the right to software updates. It is just a nice service that they offer if you choose their product.
Be very careful what you wish for, you might just get it...

Be careful with car analogies, they mostly don't work

Reply Parent Score: 5

RE: Flawed analogy
by unclefester on Tue 8th Mar 2011 08:19 in reply to "Flawed analogy"
unclefester Member since:
2007-01-13

This is a very flawed analogy. If a car is delivered with a "defect" or a "bug", the manufacturer has a duty to consumers to correct that defect. Software bugs are defects, not "wear and tear" items like the cable you suggest. So their claims are 100% pertinent - if software was delivered with any bugs whatsoever it would be the software companies duty to fix that for whatever period the governing authorities saw fit, and it's impossible to deliver complex software with absolutely no bugs.


Wrong. Companies would merely be required to provide a software warranty period eg. 12 months. They would also be required to provide patches for a certain amount of time.

Wrong. Under consumer law products merely need to be fit for the intended purpose - not free of defects. Expensive or critical mission software would be required to have very few bugs. Free software would have no quality requirements at all as long as it didn't cause deliberate damage.

When was the last time a car manufacturer sent out a letter asking everyone to bring in their car for a free update to maybe give them more fuel economy or a more responsive transmission for example?


What do you think a vehicle recall is? Car companies do it all the time. Upgrades of software and mechanical components are often done during routine servicing.

And there would be no reason whatsoever for them to offer "upgrades" to current licenses - because it's not a licence any more.


False. In fact low-cost upgrades would be necessary to ensure customer loyalty. Otherwise they would simply switch to a competitor.

Reply Parent Score: 15

RE[2]: Flawed analogy
by Soulbender on Tue 8th Mar 2011 09:14 in reply to "RE: Flawed analogy"
Soulbender Member since:
2005-08-18

Best damn answer in this thread and it's a shame I cant mod you up.

Reply Parent Score: 3

RE: Flawed analogy
by bert64 on Tue 8th Mar 2011 11:54 in reply to "Flawed analogy"
bert64 Member since:
2007-04-23

Cars with critical bugs (especially safety critical ones) will get recalled and fixed, but minor bugs won't...
My car has a problem for instance, when it's cold the electric fold out mirrors fold too far forwards. The manufacturer isn't going to fix that, and although i could replace the mirrors the replacements would have the same bug. All i can really do is pull them back into place when it happens.

Reply Parent Score: 3