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RE: What do you want your ISP to block today?
This isn't the best forum for this discussion, so this will be my last reply. > On Mon, 1 Sep 2003, David Schwartz wrote: > > > > When you don't have liability you don't have to worry about quality. > > > > > > What we need is lemon laws for software. > > That would destroy the free software community. You could > > try to exempt > > free software, but then you would just succeed in destroying > > the 'low cost' > > software community. > This is somewhat strange argument; gifts are not subject to lemon laws, > AFAIK. Gifts also don't come with licensing agreements. Gifts aren't the result of contracts, but free software is. (U.S. courts treat licensing agreements as contracts. If there's compensation, it's not a gift.) > The whole purpose of those laws is to protect consumers from > unscurpulous vendors exploiting inability of consumers to recognize > defects in the products _prior to sale_. Actually, the protect consumers only against the inability to recognize this inability. So long as consumers are aware of this inability, it poses no threat to them. > The low-cost low-quality software community deserves to be destroyed, > because it, essentially, preys on the fact that in most organizations > acquisition costs are visible while maintenance costs are hidden. This > amounts to rip-off of unsuspecting customers; and, besides, the drive to > lower costs at the expense of quality is central to the whole story of > off-shoring and decline of the better-quality producers. The availability > of initially indistinguishable lower-quality stuff means that the market > will engage in the "race to the bottom", effectively destroying the > industry in the process. Your argument is predicated on the premise that you know better than someone else what they want. You use the phrase "unsuspecting customers" if there were no other kind. You have yet to state a problem that can't be solved by educating the customers. > > (And, in any event, since free software is not really free, you would > > have a hard time exempting the free software community. Licensing > > terms, even if not explicitly in dollars, have a cost associated with > > them.) > Free software producers make no implied presentation of fitness of the > product for a particular purpose - any reasonable person understands that > a good-faith gift is not meant to make the giver liable. Gifts also don't come with licensing terms. Free software is not a gift, it's a contract, and contracts have compensation on both sides. > Vendors, > however, are commonly held to imply such fitness if they offer a product > for sale, because they receive supposedly fair compensation. You say this, but you don't believe it. If the compensation was fair, then there would be no need to provide the consumer with any additional protections since he hasn't paid for them. You can't have it both ways. Whatever offer the vendor makes, the customer may take it or leave it based upon whether it provides the customer with value for his money. There are no "unsuspecting customers" because the terms are not a secret. > That is why > software companies have to explicitly disclaim this implied claim of > fitness and merchantability in their (often "shrink-wrap") licenses. Umm, makers of free software have to do this too. Even people who place software in the public domain have to do this. This has nothing to do with compensation and has more to do with nuisance. > > Any agreement two uncoerced people make with full knowledge of the > > terms is fair by definition. > Consumer of software cannot be reasonably expected to be able to perform > adequate pre-sale inspection of the offered product, and therefore the > vendor has the advantage of much better knowledge. This is hardly fair to > consumers. That is why the consumer-protection laws (and professional > licensing laws) are here in the first place. This lack of pre-sale inspection reduces the value of software to the purchaser. So the vendor is already paying fair compensation for this lack. The consumer hasn't paid for this information and so isn't entitled to it. Again you want to have it both ways. The consumer could pay for this knowledge if he or she wanted to. Corporate customers, for example, could buy one copy of the software to inspect. Or they could hire outside firms to produce software reviews. Or they could just read printed reviews. There are any number of ways customers could obtain this information if they were willing to pay for it. If we assume, arguendo, that they don't obtain this information, it follows that they weren't willing to pay for it. But you want to force them to pay for it whether they want it or not. And why shouldn't you, you know better than they do, right? > > If I don't want to buy software unless the manufacturer takes > > liability, I am already free to accept only those terms. > There are no vendors of consumer-grade software who would assume any > liability in their end-user licensing agreements. They don't have to do > that, so they don't, and doing otherwise would put them at the immediate > competitive disadvantage. Right, that's why you, knowing better than everyone else, have to force them to. > > All you want to do is remove from the buyer the freedom to negotiate > > away his right to sue for liability in exchange for a lower price. > You can negotiate if you have a choice. There is no freedom to negotiate > in practice, so the "choice" is, at best, illusory. Go find a vendor which > will sell you the equivalent of Outlook _and_ assume liability. They won't, because people aren't willing to pay the costs for it. Again, that's why you, knowing better, must force them. If you really were willing to pay the full cost, I don't think you'd have trouble finding it. Insurance companies will provide you insurance against software failures. > > If you seriously think government regulation to reduce people's software > > buying choices can produce more reliable software, you're living in a > > different world from the one that I'm living in. > It definitely helped to stem the rampant quackery in the medical > profession, and significantly improved safety of cars and appliances. I > would advise you to read some history of fake medicines and medical > devices in the US; some of them, sold as lately as in 50s, were quite > dangerous (for example, home water "chargers" including large quantities > of radium). Sure, it saves lives. But it costs lives too. How many people in the United States died while the government dragged its heels approving labetolol? But again, you know better than everyone else, so you can decide which lives are important. > Regulation is needed to make the bargain more balanced - as it stands now, > the consumers are at the mercy of software companies because of grossly > unequal knowledge and inablity of consumers to make reasonable evaluation > of the products prior to commencing transactions. Of course you know better than the consumers what's important to them. Strange they seem to buy software even without this knowledged. Maybe that's because it's not worth the cost. > > Manufacturers would simply purchase more expensive liability insurance, > > raise the prices on their software, and continue to produce > > software that is no more reliable. > If vendors will need to buy liability insurance at the rates which depend > on the real quality of their products (the insurance companies are quite > able to perform risk analysis, unlike the end-users), this will make > improving quality not just a matter of nebulous and fungible > repeat-business rate and consumer loyalty, but the hard, immediate, > bottom-line impacting factor. Of course only the big software business could afford this. They'd have the muscle and savvy to defend the liability claims. So far from being a threat to Microsoft, Microsoft would likely champion a proposal like this. How much of their competition would go away? DS