RE: [Fwd: Germany]

[Dave J Woolley]

 From: Ravicher, Daniel B. [SMTP:[EMAIL PROTECTED]]
 
 The rest of the world does provide these automatic warranties, but we at
 least let intelligent people bargain them out of a contract.  Why should I
 be forced to pay for a warranty I don't want or need?
 
[DJW:]  I seem to remember that there are actually
different rules in the UK for members of the public
(consumers) and businesses; at least at one time, 
I believe this is one of the reasons why businesses
were reluctant to sell specialist products direct. 
(Businesses being assumed to understand what
they are buying.)
  
[DJW:]  [IANAL]

-- 
--- DISCLAIMER -
Any views expressed in this message are those of the individual sender,
except where the sender specifically states them to be the views of BTS.

  

RE: [Fwd: Germany]

[Ravicher, Daniel B.]

 -Original Message-
 From: David Johnson [mailto:[EMAIL PROTECTED]]
 Sent: Sunday, January 28, 2001 4:53 PM
 To: Ravicher, Daniel B.; Angelo Schneider;
 [EMAIL PROTECTED]
 Subject: Re: [Fwd: Germany]
 
 But are they really explicitly disclaimed? Or does one have 
 to open up the 
 shrink wrapped box in order to discover that there are no warranties.

The disclaimer is on the outside of the box.  
 
 But not disclosing a disclaimer of warranty 
 at time of sale 
 is tantamount to fraud. You can sell as many copies of 
 warranty-less BS 
 Office as you want, and you'll have no problem with me. So 
 long as the 
 customer is made aware of that warranty-less state at the 
 time of sale.

Agreed.  Their can be no bargain based on fraud.  However, if I do tell you
there's no warranty, I won't hear you complain later.  It's the decision of
the consumer to purchase a warranty or not.  [Have you ever tried getting
out of Circuit City after buying a new electronic without them trying to
push on you some "extended warranty plan"?]

 The only time the courts 
 should be 
 involved is when the consumer sues the producer for fraud. An 
 example would 
 be BS Inc representing BS Office as a merchantible product 
 when it is clearly 
 not.
 
 I don't expect you to offer a warranty with your rust-bucket 
 used Pinto. 
 However, if you represent to me that there is nothing wrong 
 with your old 
 Pinot, and it collapses in a heap ten feet out of your 
 driveway, I want my 
 money back. The courts step in if we cannot subsequently agree on a 
 resolution. Perhaps there indeed was nothing wrong with your 
 Pinto until 
 thirty secons after the sale was finalized. Perhaps you were 
 fully cognizant 
 that it was a piece of crap and outright lied to me.

Complete agreement.

 I'm not arguing that you can't sell software without a 
 warranty. But if you 
 do you need to disclose to the school that your software is 
 not warrantied to 
 be fit for any purpose. Or in other words, make it clear to 
 them that "all 
 sales are final".

Agreed again.  But once I tell them "no warranties; as is" they can't
complain later when the software crashes.
 
 But warranty is not support! As a school administrator, if 
 you were going to 
 sell me your software for $1 but couldn't even see your way 
 to offering a 
 money-back warranty, I would be very suspicious. If the 
 software doesn't 
 work, I'm not going to ask you to spend 100 man hours trying 
 to fix it, I 
 only want my $1 back.

Your suspicions indicate an educated consumer who might be willing to pay
more money for $1 back guarantee [for that matter, you might even be willing
to pay even more for a 100 man hour warranty].  Shouldn't you have that
choice?

 
 -- 
 David Johnson
 ___
 http://www.usermode.org
 

===
This email message is for the sole use of the intended recipient(s) and may contain 
confidential and privileged information. Any unauthorized review, use, disclosure or 
distribution is prohibited. If you are not the intended recipient, please contact the 
sender by reply email and destroy all copies of the original message.

To reply to our email administrator directly, send an email to [EMAIL PROTECTED]
BROBECK PHLEGER  HARRISON LLP
http://www.brobeck.com

RE: [Fwd: Germany]

[Ben Tilly]

"Ravicher, Daniel B." [EMAIL PROTECTED] wrote:

  -Original Message-
  From: David Johnson [mailto:[EMAIL PROTECTED]]
  Sent: Saturday, January 27, 2001 3:20 PM
  To: Angelo Schneider; [EMAIL PROTECTED]
  Subject: Re: [Fwd: Germany]
 
 
  On Saturday 27 January 2001 07:48 am, Angelo Schneider wrote:
 
   AND sure we have more than one leg to stand on. The same is true in 
the
   united states. Of course you have implied warranties. Or do you think
   you can say: "Here is software, I have written it. Pay me some dollars
   and you may use it. But I OWN it, still. Nope, I'm not liable if it
   hurts your computer :-)"
 
  It is my own private opinion, and IANAL, that all commercial software
should
  have the basic warranty of fitness of merchantibility. Even commercial
Open
  Source Software should be warrantied. If the seller wishes to absolve
himself
  of all warranty and liability, this should be made explicitly clear to 
the

  buyer at the time of purchase.

A few thoughts from someone who has passed the Bar for the wonderful state
of NY.  First, there is no, nor can there ever be any, meaningful
distinction between commerical and non-commerical software.  It's all
involved in commerce, just at different points of the stream (far upstream
is education and research and far downstream is product purchased by end
users).  [...]

I mainly agree except for noting that open source
software may show up at the end-user level (see
Mozilla) and commercial software may show up well
upstream (Matlab comes to mind).

However that notwithstanding, I think a useful
distinction might be drawn between traditional
proprietary software and open source software.
Conceptually if you are the only one who can audit
the source, then it really is your responsibility
to validate that the software does something
reasonable and you should be liable if it is not
appropriate for what you try to sell it as.

And, you are right, default rule is that sales of goods (software probably
included) do come with warranties.  And your intuition is also right, that
they are always disclaimed or absolved explicitly at the time of purchase.
This used to mean simply telling the purchasor in writing that they are
getting no warranties with the softaware, but because some judge thought
this wasn't "explicit enough", now this language has to be in ALL CAPS.  
[To
which my response is, if people aren't going to read the warranty 
disclaimer
which is part of every single license agreement such that we have to make 
it
ALL CAPS, what does that say about the importance of the other parts of the
license agreement?  Can we assume that since the rest of the license isn't
in ALL CAPS the purchasor won't read it?  This means, eventually, the 
entire
license will have to be in ALL CAPS and thus we're back to the starting
point with the warranty disclaimer not being explicit enough.]

If I put a grenade inside a bowling ball, and sell it to
you, should I be liable?  Even if I handed you a license
agreement that absolved me of all claims that it was
suitable for any purpose?

What about if it is a car with a marked tendancy to
explode?  A fault I knew about, and could have fixed for
$1/car?

You know, implicit warranties exist for a reason.

Second point, software companies should be able to sell whatever they want
for what ever price they want and with or without any warranties they want.
IF I want to sell BS Office without any warranty and you want to sell MS
Office with warranties, then let us compete in the market.  If consumers
want warranties, they'll pay a premium for your product and I'll lose
business.  If they don't then you'll lose profit by providing warranties 
for
product you have to sell at the same price I do.  In reality, the 
difference
in price between our products will be approximately the market's valuation
of those extra warranties that you provide (assuming the Office program you
and I sell are exactly alike).  When courts come in and regulate the
marketplace and tell consumers what they are not allowed to buy, it only
causes societal waste by preventing goods from moving to their highest
valued user.  This societal waste raises costs for everyone involved.

This assumes symmetric information.  In the real world,
*PARTICULARLY* in the real world with a proprietary design
and tests that the vendor has access to and nobody else
does, this assumption is seriously broken.

To provide a real example, your *EXACT* argument was
repeated with regards to sanitation after the proof by
John Snow based on the epidemic of 1848-1849 that cholera
was carried in water and could be prevented by proper
attention to good sewage and clean water supplies.  We
can point to the very day that this argument became
unacceptable in England.  That day was December 14, 1861
and the event was the death of Prince Albert from typhoid.

In every industrialized country today, proper sanitation
does more to extend the average l

Re: [Fwd: Germany]

[David Johnson]

On Sunday 28 January 2001 01:40 pm, Ben Tilly wrote:

 Conceptually if you are the only one who can audit
 the source, then it really is your responsibility
 to validate that the software does something
 reasonable and you should be liable if it is not
 appropriate for what you try to sell it as.

In my original post, I wasn't arguing one way or the other in terms of 
liability. I was only arguing in terms of merchantability for commercial 
products. There's a big difference.

This is a very thorny issue and I didn't want to get into it. There are some 
things that you simply can't absolve responsibility for. But on the other 
hand, without a limit on liability, non-commercial software development would 
come to a screeching halt.

-- 
David Johnson
___
http://www.usermode.org