Derrick
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There is something strange and different about the information technology market that makes it unique to just about any other industry: The complete and utter absolution from any responsibility for software creators and their products. This is done with the EULA or End User Licence Agreement. A EULA is a contract between the producer and the end user of the product. As a user you are not allowed to use the product unless you accept the contract the producer is offering you. The EULA is designed to absolve the producer from responsibility and/or to limit the rights of the user.
While writing and researching this post I could not think of any other industry where you are not held accountable for a faulty product.
To put it in perspective, imagine purchasing a car and signing away any rights you may have to hold the manufacturers accountable for a bad or faulty product. It would be like Ford knowingly releasing a car that they know has a part that has a high percentage failure rate. In the real world Ford owners would get together and start a class action lawsuit against Ford, and Ford would be on the block for hundreds of millions. Not so in the software industry. In the software industry you “sign” away your rights for fair litigation for a badly designed product.
Now, while I was doing background research into EULAs I encountered some very interesting arguments and points. The first that I believe is pretty significant is out of the about fifteen people I chatted to about EULAs, only four actually knew what a EULA was ( though more of the people I asked were able to recognise what a EULA was if you described it as the “I accept thingy”), and out of the fifteen people I asked about EULAs, not one of them had ever read the EULA beyond a couple of lines.
I got involved in some pretty long debates about the reasoning for the existence of a EULA. The best one I heard (this was shortly after I described the car analogy) was that computers are more complex than cars and there is no ways that the producers of the software could take into account every single variable. Therefore my friend believes that the EULA is fair. I have to admit, that did stump me for a while because what he was saying in essence was true. Software is extremely complex, and it becomes more complex as you add software from different producers.
However a look at another industry shows that perhaps that argument doesn’t hold as much water as you would think. What about the medicine industry. Surely dealing with chemicals and drugs on the sub-cellular level is way more complex than programming a computer? Surely the medical industry has larger more complex variables to deal with than the software industry? And surely the ramifications of a bad batch of medicine is a lot more dangerous than badly written software? Medical producers are still responsible for a bad batch or badly researched drug. You as the consumer still have legal recourse if a medical producer has been negligent.
I completely understand that due to the complexity of software that there has to be some kind of protection for producers. If you take into consideration how much badly written software there is out there and what happens when bad code is mixed with bad code… well just about anything can go wrong. However, where software producers have no excuse is when they release a product with KNOWN problems, or take too long to fix a known problem. A good example of this would be Microsoft knowing about an exploit and problem with their software, but only releasing the patch for that exploit two years later. I fully believe that Microsoft should be held accountable for any damages caused by that exploit in that two year period while they were not reacting.
Right now Microsoft can basically do what they want and not be held accountable. EULAs and such have come to be a part of our lives because people in power were sleeping when the software industry formed. The lawyers that were involved in writing up the laws to manage software producers were normally the same lawyers who were working for the software producers.
I personally do not think EULAs are constitutional. Almost no one has ever read them from start to end. A software company went out of its way to prove this once. They released their software with a clause in the EULA that stated that if anyone ever read a certain paragraph, that person could claim a $1000 from the software company. It took three years and 20 000 clients before someone claimed the money.
Also, whats to stop a dishonest software producer from inserting the clause, “if you use this software you promise to pay the software producer R2000 for every use after the first 30 days”. If the EULA is a contract between the software producer and the software user… what’s protecting the user?
While writing and researching this post I could not think of any other industry where you are not held accountable for a faulty product.
To put it in perspective, imagine purchasing a car and signing away any rights you may have to hold the manufacturers accountable for a bad or faulty product. It would be like Ford knowingly releasing a car that they know has a part that has a high percentage failure rate. In the real world Ford owners would get together and start a class action lawsuit against Ford, and Ford would be on the block for hundreds of millions. Not so in the software industry. In the software industry you “sign” away your rights for fair litigation for a badly designed product.
Now, while I was doing background research into EULAs I encountered some very interesting arguments and points. The first that I believe is pretty significant is out of the about fifteen people I chatted to about EULAs, only four actually knew what a EULA was ( though more of the people I asked were able to recognise what a EULA was if you described it as the “I accept thingy”), and out of the fifteen people I asked about EULAs, not one of them had ever read the EULA beyond a couple of lines.
I got involved in some pretty long debates about the reasoning for the existence of a EULA. The best one I heard (this was shortly after I described the car analogy) was that computers are more complex than cars and there is no ways that the producers of the software could take into account every single variable. Therefore my friend believes that the EULA is fair. I have to admit, that did stump me for a while because what he was saying in essence was true. Software is extremely complex, and it becomes more complex as you add software from different producers.
However a look at another industry shows that perhaps that argument doesn’t hold as much water as you would think. What about the medicine industry. Surely dealing with chemicals and drugs on the sub-cellular level is way more complex than programming a computer? Surely the medical industry has larger more complex variables to deal with than the software industry? And surely the ramifications of a bad batch of medicine is a lot more dangerous than badly written software? Medical producers are still responsible for a bad batch or badly researched drug. You as the consumer still have legal recourse if a medical producer has been negligent.
I completely understand that due to the complexity of software that there has to be some kind of protection for producers. If you take into consideration how much badly written software there is out there and what happens when bad code is mixed with bad code… well just about anything can go wrong. However, where software producers have no excuse is when they release a product with KNOWN problems, or take too long to fix a known problem. A good example of this would be Microsoft knowing about an exploit and problem with their software, but only releasing the patch for that exploit two years later. I fully believe that Microsoft should be held accountable for any damages caused by that exploit in that two year period while they were not reacting.
Right now Microsoft can basically do what they want and not be held accountable. EULAs and such have come to be a part of our lives because people in power were sleeping when the software industry formed. The lawyers that were involved in writing up the laws to manage software producers were normally the same lawyers who were working for the software producers.
I personally do not think EULAs are constitutional. Almost no one has ever read them from start to end. A software company went out of its way to prove this once. They released their software with a clause in the EULA that stated that if anyone ever read a certain paragraph, that person could claim a $1000 from the software company. It took three years and 20 000 clients before someone claimed the money.
Also, whats to stop a dishonest software producer from inserting the clause, “if you use this software you promise to pay the software producer R2000 for every use after the first 30 days”. If the EULA is a contract between the software producer and the software user… what’s protecting the user?