The plaintiffs' problem with no software liability

Earlier today I had a bit of fun ridiculing the idea of software liability.

Now we're going to play moot court and I'm going to take the other side.

While walking through my local mall yesterday I chanced upon a man fixing a soda machine. Or trying to.

It has a big screen and can sell many different types of sodas, but I could tell he was actually rebooting it. I knew this because the familiar Linux start-up screens were flashing by, sideways, on the front of the machine.

Now if this were an ordinary machine, and it went kerblooey, say by ejecting sodas as on this trailer from Mel Brooks' classic Silent Movie, couldn't we go to court? You couldn't say, sorry for your loss, it was a software bug, could you?

No, you couldn't.

Practically every product these days contains software. Your car is lousy with it.

If anything with software were immune from suit, you could never sue the car company whose bad fuel injector killed your Aunt Sylvia. There could be no protection from any dangerous product. Defendants could just shrug and say, "software problem. Sorry."

That does not happen. When software goes into hardware, and that hardware becomes part of a product, there is liability for what the product does. Even if it's the fault of embedded software. Embedded software companies get sued all the time.

So if I put software on a chip and someone puts that chip in a product, then sells the product to me, they're liable for the software? But if I download the same software, click yes on its license, and that software blows up there is no liability?

As Cem Kaner of the Florida Institute of Technology explains in the Powerpoint linked above, that's pretty much it.

That needs to change.

For one thing embedded software is usually more secure from tampering than other software. It's safer. It's where more of the industry should be heading.

But is it so much safer you want to take on full liability? Better from a legal perspective to stick your head in the sand and keep downloading, no matter the risk.

Having different legal standards for embedded software, sold in a product, and other software which the user licenses, then, is not only unfair but leads to more real danger as companies reject the embedded solution over liability issues.

It's time for a universal legal standard covering all software, the plaintiffs conclude.