Subject: RE: [les-software] disclosure of known defects
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Fri, 12 Mar 2004 10:14:01 -0800

Don,

You've asked a fascinating question and I'm looking forward to the comments
of those who work specifically with proprietary software. You asked whether
a software licensor has a duty to disclose known defects.

Open source software projects attempt to satisfy the concerns of consumers
by (1) fully disclosing all source code so that defects can be known and
corrected; (2) undertaking software development in a collaborative fashion
so that contributors are encouraged to find, document and fix defects; and
(3) disclaiming all warranties and disclaiming liability to the maximum
extent permitted by law.

By way of contrast, most of the proprietary vendors I've worked with treat
their defect lists as trade secrets, and then also disclaim warranties and
liability. If a client of mine were ever seriously injured (personally or
financially) by a software defect known to the vendor but not reported to
consumers, I'd sue for fraud regardless of the disclaimers of warranty and
liability. But that's just my bias in such matters. I can't provide any
citations now to demonstrate that I'd win such a case. It also depends on
the jurisdiction. I know that European laws are far more protective of
consumers than we are in the United States.

/Larry Rosen

I'm cross-posting this to the OSI license-discuss list so that others may
comment on your email.

> -----Original Message-----
> From: Don Jarrell [mailto:don@digitalthinkinginc.com] 
> Sent: Friday, March 12, 2004 9:01 AM
> To: LES Software Committee
> Subject: [les-software] disclosure of known defects
> 
> 
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> ------------------------------------------------------
> Clarification: I am not an attorney.  And, as always, 
> I'm not asking for legal opinions or legal advice, just 
> thoughts, references, and discussion.  This message was 
> posted to the LES Software committee discussion list 
> (les-software@lists.les.org)and blind-copied to select 
> individuals; my apologies to anyone who might have received 
> two copies.
> 
> I am working on a matter involving a software licensor's
> duty to disclose defects and how they might go about it 
> effectively - or reasons for not doing it.  I am interested 
> in both the practical issues, and (for understanding) the 
> legal points underlying them.  
> 
> Do any members of our LES Software discussion list have 
> thoughts, papers, articles, citations, or other resources 
> that would be helpful on these topics ?
> 
> This does NOT relate to any required high standard like
> NRC, FAA, or healthcare, it is just 'regular' enterprise 
> software with operational and financial implications. And, 
> even though I am in Texas, this situation is not so we cannot 
> rely on anything restricted to Texas.
> 
> Can a licensor make some disclosures of known defects
> without a completely exhaustive list ?  Is a list
> sufficient, or does anything drive such a duty to 
> achieve the full *understanding* of the licensee ? Are
> there any decisions that help define reasonable efforts
> to disclose where some degree of this duty exists ?
> 
> What are the general leanings of any particular courts 
> on these issues ?
> 
> Thanks for any help.  It would be great if we could 
> have more interaction and discussion like this on this 
> discussion list, and all members are encouraged to use it 
> similarly.  If you have something you would prefer 
> to share directly with me, off list, please feel free 
> to use the email address below.
> 
> Cheers.     dj 
> 
> Don Jarrell
> LES Software Committee chair
> 
> ******************************************************** 
> Don B Jarrell                don@digitalthinkinginc.com 
> Digital Thinking Inc.        512 266 7126        office 
> www.digitalthinkinginc.com   972 467 6793        mobile 
> ******************************************************** 
> 
> 
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