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The Sneakwrapping of American Law | 3 comments (3 topical) | Post A Comment
partial agreement[ Reply to This ] (none / 0) (#2)
by Anorlunda on Fri Sep 12, 2003 at 02:53:22 PM PDT

I agree with all of Kaner's propopose rights in spirit, but in practice I think a few of them are impractical.

2 Disclose known defects: For a major product like, this disclosure would be thousands of pages long and many of the defects would be impossible to describe in layman's language, or to predict what the impact on consumers may be. Many bugs are thought to be benign, and often that thought is incorrect. It could be more costly to generate a complete and accurate disclosure than to generate the software.

3 live up to claims Making this law would just produce a feeding frenzy for lawyers. Lets say one has an office program and that the program claims to support table of contents. The TOC feature may have bugs or restrictions or interpretations that don't meet the need of some user somewhere. If that user could sue, it would be chaos. Imagine the lawsuits over a claim of being "friendly" or "efficient."

5 blocking access I agree except that "blocking access" is hard to define legally. Suppose the data is stored in a proprietary format, and the vendor software to read it is removed. Is that blocking? Suppose the data is stored in XML but the non-technical user thinks XMS is an obscure proprietary format? If users have the feature to export or capture thier data in a format not proprietary to the vendor, then the user should not be able to sue for getting blocked. [Note that print screen is one way to capture a non-proprietary version of your data.]

9 transfers I would worry about transfers only in connections with disclosures. If the consumer fails to transfer the disclosures with the software who is responsible?

liability Kaner's bill of rights says nothing about the level of vendor liability. Is it limited to the price of the sofware? The fair market value of the used software? The fair market value of the fraction of the software defective? The consequential damages to the user's business? There is no way that a vendor can accept a liabilty of millions for a product with a price in the hundreds, so consequential damages must be categorically excluded. In the other cases, there is a legal doctrine called de minimus rex that protects the courts for trivial disputes. For example, if you paid $300 for an office suite and 18 months later sue because of a bug in the table of contents feature. No court wants to spend it's valuable time figuring out how much compensation is due to you. Neither does any court want to wrestle with compensation if you spend 3 months of your valuable time trying to make the buggy feature work right.

On the other hand, if you are spending $50K to $50M for some software you're not in the mass market. Both sides should no rights except those agreed upon by contract. You should be hiring an attorney to write a contract that overrides standard license terms. It will cost you 5% to 10% for your own attorney's fees and it will make your vendor add 5% to 10% to his price. If you're too cheap to do that or if your contract skips important points, it's your fault.

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The Sneakwrapping of American Law | 3 comments (3 topical) | Post A Comment
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