[SystemSafety] Personal and corporate liabilities as a consequence of safety, security and other mistakes of similar importance

[Steve Tockey]

Again the disclaimer about not being able to give legal advice, however
Cem Kaner is an actual lawyer and specializes in both software and product
liability law (See, for example, https://en.wikipedia.org/wiki/Cem_Kaner).

Cem Kaner says that at least in the US there is a law called ³Uniform
Commercial Code² (UCC) that supersedes all license agreements on all
products. In spite of what a license agreement from the folks in Redmond
might claim, UCC is supposed to take precedence under something called the
³Warranty of Implied Merchantability². That essentially means that if you
are selling somethig then the buyer has the right to expect that it should
reasonably perform the services for which it was purchased‹and if it
doesn¹t then the supplier is liable for remedy.

It seems that the strategy of the corporate lawyers at software firms is
to make the consumer think they don¹t have rights they actually do have
under UCC and thus not seek remedy even though they could easily have the
legal right to do so.

It¹s not at all clear how this would apply in the Free & Open Source
Software arena because the user didn¹t actually pay anything.


‹ steve



-----Original Message-----
From: systemsafety <systemsafety-bounces at lists.techfak.uni-bielefeld.de>
on behalf of Olwen Morgan <olwen at phaedsys.com>
Date: Monday, October 8, 2018 at 10:42 AM
To: "systemsafety at lists.techfak.uni-bielefeld.de"
<systemsafety at lists.techfak.uni-bielefeld.de>
Subject: Re: [SystemSafety] Personal and corporate liabilities as a
consequence of safety, security and other mistakes of similar importance



On 04/10/18 13:30, Martyn Thomas wrote:

<snip>

 >>> Explicitly prohibiting such use in the FOSS licence conditions
might be considered to be enough to transfer
 >>> the duties under HSWA to the person or organisation that chose to
ignore the licence conditions when
 >>> deciding to incorporate the FOSS in a safety-related application.

Microsoft Windows licences (at least for Win 7) had a clause roughly to
the effect that it would be a breach of the licence terms if Windows 7
were used in a system where it was reasonably foreseeable that
malfunction could cause death or injury. I am aware, however, of
circumstances in which an engineering manager had a teleconference with
Microsoft's lawyers in which he claimed to have persuaded them that
using Win7 in a neonatal ventilator did not fall foul of that clause. (I
also have reason to believe that he also misrepresented the situation to
the MS lawyers.)

The worrying point here is that the MS licence agreement, presumably
drafted by MS lawyers, was intended to be airtight for commercial use
but was unfortunately none too succinctly worded. If MS lawyers do a
non-stellar job of contract wording, should we expect the terms of FOSS
licences to be any better?


Olwen


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