The defendants' problem with software liability

(Picture from CNET's Download Blog.)

But there are practical problems as well, only some of which are covered by Raymond Nimmer's in-depth critique of the proposal.

First, as Nimmer points out, this is going nowhere.

Only two states have passed anything like the Uniform Computer Information Transactions Act (UCITA) which the American Law Institute (ALI), the group behind the current effort, previously worked on.

The ALI's proposed changes to the Uniform Commercial Code Article 2, dating from 2003, have likewise gone nowhere.

But there is a deeper problem, as anyone who has ever called a computer help desk (or worked at one) knows well.

Fixing liability.

If an application goes kerblooey, and takes your hard work with it, the fault may lie in the application, or in the operating system, or even in the firmware. It could be a bug or an electrical short. It may or may not be replicable.

There may be a bug, or there may not be. The bug could be in a driver, not the main program. Maybe that driver came from a printer manufacturer, maybe from a third party. Maybe it's an accident and maybe it's malicious. Maybe a hacker corrupted files on the Internet, and maybe the checksum didn't work correctly as those files were downloaded.

Figuring out who screwed up, who is liable for whatever damages may occur with software, can be hard enough for a help desk.

Now imagine a lawyer gets involved.

Thus, defendants' argue, any complex software system has too many potential points of failure for anyone to ever figure out who to sue when something goes wrong.

And then what are the damages? A new copy of the software, a new PC, a new printer -- those are often offered routinely in the channel.

You can't expect us to pay for that novel you claim was lost. It's worse writing than on in the Microsoft EULA. And the plotting, the characterization -- it's like reading one of Dana's blog posts. It's worthless.

Once you try fixing liability for software problems, in other words, you go down the rabbit hole and never come out, the defendants conclude.

The best protection is to save your work regularly, to back up your work, and if you don't do that maybe you're the one who's liable.

Maybe your software company should sue you.