Software liability laws: a dangerous solution [LWN.net]

Software liability laws: a dangerous solution

Posted Sep 6, 2007 13:30 UTC (Thu) by NRArnot (subscriber, #3033)
Parent article: Software liability laws: a dangerous solution

IANAL, but I believe that in English law in order for any type of product liability to arise there has to exist a contract, and in order for a contract to exist there has to be a voluntary exchange of value (usually a payment, although a contract stipulating payment of a "peppercorn" signed by both parties is acceptable).

Free software - no contract - no liability?

Then there's the explicit disclaimer in the GPL license. Note license, not contract. If you do not accept the license you have no legal right to use the product. Can someone who steals a product really hold the victim liable for its deficiencies?

(Of course, there is still all the non-English law to worry about).

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International liability

Posted Sep 8, 2007 2:04 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

Just the thought of someone suing a free software developer (without a support contract) is ridiculous

You've heard of tort law? Liability for one's negligence -- no contract or transaction required.

If you set up a public swimming pool, as a gift, and don't put a fence around it and a child you've never met wanders in and drowns, you're liable for the damage at least some places in the US. That may not be negligent enough to trigger liability in all jurisdictions, but all of them have similar cases that do.

I'm not claiming that spreading buggy software reaches that level of negligence; just that it's not as black and white as if you give it away, you aren't responsible for your mistakes.

International liability

Posted Sep 8, 2007 11:14 UTC (Sat) by man_ls (subscriber, #15091) [Link]

Ah, OK. In Spanish law, "tort law" is called extracontractual responsibility, and of course it is applied in the sense you explain: if you open a hole in the middle of the street and somebody falls inside, you are responsible for any damages.

The Spanish civil code, in its article 1902, says:

Whoever causes harm to another by action or omission, with intervening guilt or negligence, is forced to repair the harm done.

Which would seem like an open door to problems for free software developers. In practice responsibility is reduced by courts to a specific range of subjects, and "negligence" seems to be interpreted in a rather narrow sense. Just publishing code would not be enough if you have to download and deploy it first.

As before, IANAL. This kind of disclaimer for example is usually not necessary here in Spain, and not just to avoid charges of negligence; you would have to actually claim you are a lawyer before anyone starts to even consider it. So maybe it is a cultural thing.

liability for negligently distributing free software

Posted Sep 8, 2007 18:40 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

In practice responsibility is reduced by courts to a specific range of subjects, and "negligence" seems to be interpreted in a rather narrow sense. Just publishing code would not be enough if you have to download and deploy it first.

I don't think there's ever been a case anywhere in the world of someone being held liable for negligently coding and/or distributing software. I base that solely on the fact that I've never seen it reported in LWN.

But if you use your imagination, you can probably think of a case fitting that description where the negligence is so outrageous that the distributor should be held accountable, and courts would probably find the law requires it.

...IANAL. This kind of disclaimer for example is usually not necessary here in Spain,

I don't think it buys you anything legally in the US either (and I don't think that's why people say it). Besides the fact that no one has the right to assume someone is a lawyer just because he sounds like he knows the law, there's the fact that no one is liable just for giving bad legal advice. One would have to be actually "practicing law," which is a much more specific behavior than giving advice in a public forum.

Software liability laws: a dangerous solution

Posted Sep 8, 2007 1:54 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

I believe that in English law in order for any type of product liability to arise there has to exist a contract

Hence the need for legislation.

You're talking about warranty liability, which is the law already. There are a few other ways a person can owe someone for making a bad product. Some would require legislation.

Can someone who steals a product really hold the victim liable for its deficiencies?

Yes, under the theory of strict liability. I remember a (US) case in which an automobile manufacturer was held liable for a defect that damaged someone who stole the car. (He didn't steal it from the manufacturer, but the result would have been the same). The law holds people who make dangerous things responsible to the public (even evil people) for making them safe.