Law of Software Contracts

I'm not a lawyer... but i'd like to wade in on contract law a little if i may ;-)

This entry, from Cem Kaner, "A first look at the proposed Principles of the Law of Software Contracts", was mentioned in Larkware today.

It includes this snippet of the proposed principles:

"a vendor who knows of a hidden material defect in its product
but sells the product without disclosing the defect
is liable to the customer for damage (including expenses)
caused by the defect."

(And Adam Goucher has more here.)

Legal stuff always raises more questions for me than it answers. And a bunch of questions jump out from the little that Cem has quoted.

F'rinstance, what about: a vendor who knows about a defect, but considered it immaterial? This happens all the time.

Or, more common still: a vendor who has an employee who momentarily knew about a limitation of the product, but didn't expect that that limitation would lead to a material defect?

Here's an Example...

You're writing some code, you choose to implement an algorithm in a particular way, which has a limitation.

You don't consider the limitation to be major, so you don't document it. But since you wrote the code, it's clearly evident that you did know about the limitation at the time you wrote the code.

The limitation isn't revealed by the sort of testing a 'reasonable' buyer would perform, and it isn't mentioned in documentation.

When put out in the field, the limitation causes some material defect in the behaviour of the software, that has massive consequences.

For example: the medical system you're writing didn't correctly handle the turkish letter "i"... hence a patient slipped through the system and died.

Who pays?

Go at it, legal geeks.

The coder in question should have taken into consideration the possible effects of hte code they were writing.

and also -- unit tests!

The software contract should warrant that the code is only fit for use with the american alphabet, and in the case of the customer they should've tested it with non american characters before they paid for it.

The applicable principle in the American legal system would be:

Everyone pays...except ME.

LB: The American Alphabet is the one where you have a 'zee'. So, for example, if you expected the software to handle a 'zed' character, you would be out of luck.

"F'rinstance, what about: a vendor who knows about a defect, but considered it immaterial?"

Then they should have documented it, because then they have not "[sold] the product without disclosing the defect".

"a vendor who has an employee who momentarily knew about a limitation of the product, but didn't expect that that limitation would lead to a material defect?"

I think the correct answer here is that the employee shouldn't come out and say "oh I knew that that wouldn't work but I didn't tell you". However, even if he did, the company wouldn't be liable, since the company did not know the defect existed (unless they provide a guarantee that the software won't do that).

"a vendor who *knows of* a hidden material defect in its product ..."

(Emphasis added by me.) Does this mean that for some theoretical vendor who (for the sake of argument) is more interested in minimizing their potential liability than in releasing a defect-free product, the correct strategy would be to do as little QA as possible, to avoid "having knowledge of" any defects that may be present in the product?

In other words, since ignorance is (apparently) a valid defense for the vendor, is the correct strategy for the vendor to remain as ignorant as possible?

"F'rinstance, what about: a vendor who knows about a defect, but considered it immaterial?"

I think it is fairly simple by definition a defect can not be considered immaterial.

Think about it another way, if you were a builder and built a floor out of cheaper material that wouldn't take the strain of an elephant, but didn't disclose it thinking there's no way that much weight will be needed to be handled by that floor.
Then lo an elephant walks into the room, the floor colapses and the circus is now -1 elephant. Are you liable to the circus clowns?

I think the idea of a software contract is a great one, if only as an idea. We have for too long as an industry been quite happy to let slip defects and refuse any responsibility.

Also i would see the contract being passed on to the testing consultancy and them being liable for not picking up the defect.

>a vendor who knows about a defect, but
>considered it immaterial... should have
>documented it

no, this is too simplistic. If a defect is immaterial, it's not worth documenting.

@PJW
>by definition a defect can not be
>considered immaterial.

no way, this is too simplistic as well. there are immaterial defects.

every function in your system has limitations, most of which are irrelevant to the problem domain. those limitations are essentially immaterial defects.

@Owen:

top work, using an elephant in your example. And 50 bonus points for using circus clowns.

if only some mimes had been standing on the floor below.

Do we really need to get more lawyers involved with software development? Havent they done enough damage?

Software should be tested. The tests should be deemed appropriate by all parties. If some unforseen elephant comes along banging out turkish characters on your keyboard and the software breaks, does the client really have the write to say "Hey, your software doesn't support EL:TU regional settings!!!I'm going to tie you up in court for the next 4 years until all you know about coding is obsolete!"

> If a defect is immaterial, it's not worth documenting.

Eh, I don't know about that. I see it in commercial technical documentation frequently; they describe bugs in their software. They don't label them as bugs, of course, more like "limitations" or such. Try searching msdn2.microsoft.com for things like "note that in", or "problem exists", or "due to a limitation in"

For instance, <http://msdn2.microsoft.com/en-us/library/3135s427(VS.80).aspx>

"Due to a limitation of the GDI+ decoder, an System.ArgumentException is thrown if you construct a bitmap from a .png image file with a single dimension greater than 65,535 pixels."

That may seem immaterial, but it's documented.

@Ryan:
Yeh. so some immaterial defects are documented.

If possible, document them all. Great.

But still: not every immaterial defect is worth documenting. A defect isn't "by definition" beyond immaterial.

@Al:
"EL-Tu"

Okay -- so the standard is that we define language, THEN region (eh EN-US, EN-AU). So if the turkish speaking elephant is indian (smaller ears, browner skin) we'd say "TU-IN" and for african elephanet "TU-AF". So your El-Tu comment is wildly out of line and ought to be deleted, if not forwarded to any current and future employers as proof of incompetence.

Sheesh!

The hypothetical elephant would be talking in Elephant. Turkey would be their region (I guess that would be where they would find a turkish keyboard). Supposing that an elephant spoke turkish and resided in the region of elephant... hmm, I didnt test for that.

I came across this randomly, searching for turkish elephants. you all get bonus marks for best digression in a running commentary...

Law of Software Contracts

Here's an Example...

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