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Vendors%squot Right to Ship Buggy Software Under Fire

Consumer Project on Technology worried that new contract laws will relieve vendors of all responsibility.

By Brian McWilliams, PCWorld   

The campaign by Ralph Nader%squots Consumer Project on Technology comes as Nader and company are abandoning hope that shrink-wrap software licenses can be made proconsumer. The CPT and other consumer advocates say they%squotve been unable to influence a major industry effort underway to revise contract laws, known as UCC Article 2B. According to CPT staff attorney Todd Paglia, the software industry has stonewalled attempts to revise Article 2B to protect consumers from shoddy software.

Paglia says, %dquotI%squotve come to believe that under the current drafting committee [the proposal] will not be reformed. It must be killed. And the way to do that is to come up with a better alternative. We%squotre going to try to make our law very understandable and clear,%dquot unlike the current proposal, which is a %dquotlabyrinth of 200-plus pages so slanted toward the industry it%squots ridiculous.%dquot

Article 2B is expected to be reviewed by the American Law Institute later this spring and approved by the National Conference of Commissioners on Uniform State Laws this summer. After that, states could soon begin adopting it as law. If that happens, according to Paglia, software companies will be able to hide behind unprecedented license terms that free them from any responsibility for defects in their products.

Instead, the CPT will champion new state laws comparable to the lemon laws protecting buyers of automobiles. Under one possible scenario, purchasers of software would have up to 60 days to evaluate a product and be able to return it for a full refund.

Dan Coolidge, a software attorney with Sheehan Phinney in Manchester, New Hampshire, says such a law would never pass.

%dquotThat%squots not going to happen simply because it%squots uneconomic,%dquot says Coolidge. %dquotIt is not a good remedy ... no more than saying go ahead and [read a] book, if you like it pay for it, if you don%squott, don%squott [pay for it].%dquot

Coolidge has been advising the committee drafting Article 2B. While he calls himself pro-user, Coolidge says it is unreasonable of groups like the CPT to think that Article 2B could be used to regulate the software industry. Rather than proposing ill-fated legislation that dictates no-questions-asked return policies, he says the best consumer groups can hope for is state laws that force vendors to disclose all known bugs on their Web sites.

%dquotThe software isn%squott sold to please you, it%squots sold to do [a certain set of tasks],%dquot Coolidge says. %dquotIf it does those tasks, and [the vendor] disclosed the bugs in it, I don%squott think you ought to have the right to get your money back. But if it doesn%squott do those tasks, or if it is known to have significant bugs in it and they%squotre not disclosed, you should have the right to get your money back.%dquot

Paglia of the CPT agrees that vendors could help both themselves and their customers by conspicuously posting information about their known defects.

%dquotOne of the outcomes of making things conspicuous is that [vendors] would then compete on warranties,%dquot Paglia says. We don%squott even know ... if buggy is a requirement for software. ... A lot of people think [it would be possible to] make pretty decent software, especially if [vendors] had to stand behind it.%dquot