Software Liability [Was Re: [LINK] Oracle & Open Source]

[Roger Clarke]

>steve jenkin wrote:
>>  d) MSFT has *amazing* potential legal liabilities, EULA
>>     non-withstanding, for its poor O/S reliability and shallow security.
>>     If ACCC declared their O/S's fail under the TPA (not merchantable
>>     quality), they're gone - very fast.

Software has never been goods for the purposes of the Trade Practices 
Act (although where software is intrinsic to a good - e.g. your 
car-engine - that probably doesn't remove the good from public 
liability law).

Moreover, corporations who have suffered harm as a result of the many 
inadequacies of software produced by other parties (particularly but 
not only Microsoft) have been extraordinarily reticent in pursuing 
other courses of action, such as the 'merchantable quality' 
provisions of contract law.

Even if the Law Reform Commission's report on Product Liability, back 
in 1988, had ever been acted on, software probably *still* wouldn't 
be subject to product liability law:
http://www.anu.edu.au/people/Roger.Clarke/SOS/PaperLiaby.html

[IANAL, and I haven't revisited this since 1988.  Gawd I feel old]

-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/

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Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW