Should Software Manufacturers be liable for Defective Software?

Carmen JonesSection 613

How consumers are being disadvantaged:

Consumers have no legal alternative over defective software they buy off the shelf because of restrictions on liabilities written in product licensing agreements

Custom-built software is also protected against liability through various errors-and-omissions clauses.

Example of License Agreement

Apple Computer, Inc. WebObjects 5.2 Software License Agreement PLEASE READ THIS SOFTWARE LICENSE

AGREEMENT ("LICENSE") BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE APPLE SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS … APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE APPLE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

Reason why quality of software is low

One key reason why software quality ranks so low is that there is little chance the software industry

will be held accountable for damages.

With program code embedded in cars, planes, trains and

hospital equipment, software developers can hide behind

third-party status. They don't make the products that use the software, so if failure or injury

occurs, the software maker hides in the background.

Ways to reduce software defects

having testers who can figure out bizarre cases in which the code might fail

ability to handle things beyond the software's operating scope and flag the error before bad things happen

for customers to sue vendors or take other legal action

If vendor liability is used to solve security flaws it would affect employees, shareholders and customers because it raise costs and not encourage innovation

How could legislatures impose liability on the computer industry

Forcing software manufacturers to be subject to the same product liability laws that affect other industries

If they produce defective products they will be liable for damages

Software vendors would think twice about product features and complexity because liability would force them to consider whether such additions are necessary

Why they should not be liable?

Will jeopardize innovation Vendors are working to create better and more secure products Allowing these advancements is good for consumers

Will affect U.S. competitive advantage Would hinder product development and which would result in lost of

technical jobs and productivity Will jeopardize the U.S. industry’s leading position in global

markets Benefits to consumers Software cannot be foolproof

products of engineering are not perfect As technology benefits increase users find ways to misuse or modify

it Punishing the wrong people

There should be more prosecution of computer crimes, stiffer penalties for hackers and more cyber crime training for law enforcement instead of focusing on software manufacturer’s

Recent Cases of Software Malfunctions

Dell battery recall in August

Between 1985 and 1987 six patients were seriously injured or killed as a result of receiving excessive radiation doses attributable to the Therac-25 and defective software

Recent Software Glitch of Segway scooters

• cbs13.com – Segway• Segway Recall

• According to the manufacturer, the "speed limiter" in a Segway can cause it to tip backward suddenly, throwing off the rider.

What software manufacturers are doing now to prevent defects:

According to the National Institute of Standards and Technology  , developers spend about zero percent of their development costs on identifying and correcting defects. Reports like these reveal a callous, user-be-damned attitude by the software industry. But when inept coding runs mission-critical systems in transportation and medical procedures, that attitude can be deadly.

Adding insult to injury is a conclusion by the Institute of Electrical and Electronics Engineers that peer reviews of software will catch 60 percent of all coding defects. But few, if any, companies subject their programming to peer review.

Stats

0%

10%

20%

30%

40%

50%

percentage of

software firms

polled

How software companies

viewed their software

releases too manydefects

lackedadequatequalityprogram

do notconductformalqualityreviews

Something to think about

In his book, author T. Capers Jones reported that no method of removing software defects or errors is 100 percent effective. Formal design and code inspections average about 65 percent in defect-removal efficiency. Most forms of testing are less than 30 percent efficient, Jones wrote.

Factors that can affect software

temperature changes power fluctuations or failure wear and

tear. incompatibility with hardware Hardware can also be temperamental There are a number of other factors

which could affect software to be defective

Works Cited

• Works Cited• Schmidt, Howard A.. “Perspective:  Give developers secure-coding ammo”.

News.com. 3 Nov. 2005. 22 Oct 2006;<http://news.com.com/Give+ developers+secure. /-coding+ammo/2010-1002_3-5929364.html>

• Miller, Harris, Schneier, Bruce ”Face-off: Should vendors be liable for their software's security flaws?” Network World.  22 Apr. 2002. 22 Oct.

2006 <http://www.findarti/ cles.com/p/articles/m i_qa3649/is _200204/ai_n9080983>

• Germain, Jack M. “Can Software Kill You?”. TechNewsWorld.com. 13 Mar. 2004. 22 Oct. 2006. < http://www.technewsworld.com/story/33398.html>

• Jamieson, Maurice. “Liability for defective software” The Journal. 2001 May. 23 Oct. 2005 <http://www.journalonline.co.uk/article/1000702.aspx>

• Segway recalls 23,500 scooters. September 14 2006. 23 Oct. 2006. CNNMoney.com. <http://money.cnn.com/2006/09/14/news/companies

/segway /index/. htm>