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Doug Nebeker ("Doug")
On 1st October 2015 the old Sales of Goods Act etc will be replaced by the Consumer Rights Act.
If you look at the examples (https://www.citizensadvice.org.uk/about-us/how-citizens-advice-works/citizens-advice-consumer-work/the-consumer-rights-act-2015/) you can find number 6:
"You buy an app for organising your music and photos, but when you start to use it, you find that it has a bug that causes it to delete your music and photos.
Assuming you can show that the damage was caused by the app itself and that the damage would not have arisen if the trader had used reasonable care and skill, the trader would be liable to either repair the damage (by recovering the music and
photos) or to make an appropriate payment to you to compensate for the damage.
The trader can choose which remedy they offer."
I haven't read the details of the act but I assume that this would automatically override any EULA agreement - if the EULA has any legal weight in the first place.
>"Assuming you can show that the damage was caused by the app itself and that the damage would not have arisen if the trader had used reasonable care and skill"
That would not be trivial to prove. However it could open us up to litigation threats that we wouldn't have faced otherwise.
>I assume that this would automatically override any EULA agreement
You can't override someone's basic rights by by getting them to sign a contract. So I am fairly sure that clicking on a EULA is no different.
I guess the clause in my EULA that says:
"Oryx Digital Ltd shall not be liable for any consequential, incidental or indirect loss arising in connection with the Software. In any event the total liability of Oryx Digital Ltd to you howsoever arising in connection with this Single User Licence and/or trial licence or the Software shall not exceed a sum equal to the Oryx Digital Ltd recommended selling price at the time of your purchase of the Software giving rise to the liability in question ."
Won't be worth the electrons it is written on if the buyer is in the UK. Still worth having for sales outside the UK though?
Monday, September 28, 2015
> That would not be trivial to prove.
Unless it's a reproducible bug.
It's not clear what fair compensation would be. If you accidentally deleted one folder that contained 25 seasons of some TV series to which the DRM is defunct so they can't re-download but they can prove that it cost them $100 per season... would you have to refund all of that if the original app was only $1 ?
And how about if your software accidentally deleted the unique photo of Uncle Bob at cousin Billy's wedding, what is fair compensation for that.
Perhaps if you had a unit test for the function with the bug and you have the output from testing the specific version that deleted the folder. Maybe you could use that to show you took reasonable care to avoid such a thing happening ?
Reasonable care: make sure any delete functions are confirmed by the user first with a dialog, and so on. That's easy.
But for bugs that might unintentionally delete something, that's a bit harder to defend against. I guess you'd need to have testimony from a skilled coder who can vouch that your source code was not written to purposely delete the unintended data, and that it occurred due to unforeseen circumstances that only a psychic could know. :)
The other unfortunate consequence is where your application gets blamed for damage purely because it was the last one the user touched or installed (all the while forgetting that they'd hit 'Ctrl+A+Del' in another app). You then get to consume resources defending your case.
But more practically, it appears that the burden of proof is with the consumer. Unless the bug is reproducible - and without access to your source code - what recourse do they really have?
UK has a looser pays system right? More practically is looks like UK lawyers will be sending out thousands of these for small settlement amounts.
Wednesday, September 30, 2015
Sounds to me more of a "Somebody outa DO something!" placebo law than anything with real teeth,
Wednesday, September 30, 2015
Hmm.. it does seem (on first reading) that the liability is quite specifically limited to "damage to device or other digital content", as opposed to wider liability - which is something, I suppose.
Although what consitudes "damage" I don't know. I quite often get ludicrous support emails where the user has arbitrarily decided to uninstall/reinstall all sorts of random things due to some perceived issue with my software (none of which would ever be cured by a reinstall). Am I liable if the user stuffs up his machine?
The SOGA was the core UK consumer protection law so I wouldn't write off this replacement law. Having said that, there isn't much precedent for proving that an application had bugs causing damage therefore people will be reluctant to be the first to seek compensation.
Eventually other countries will also update consumer protection laws with sections specific to software and digital content. e.g. the movie you pay to download is advertised as high quality but having downloaded it you find it is low resolution and has a lot of compression artefacts.
If your app ends up bricking someone's device you might have to pay for the device to be reset to factory state and then restored. It may not be difficult but it could be expensive to organise.
I think the difficulty for this law is that the plaintiff has to prove that the app is broken. Most people aren't technical enough to be able to do that. If the bug is simple but only manifests itself in a complex set up of files and actions then the developer could argue that it was a scenario that they couldn't have been reasonably expected to test.
The way I see this affecting developers most is for the $1 - $2 niche apps. Can you afford to sell at that price when your potential liability could be far higher ?
According to Which.co.uk the ability to claim for damage:
"applies where that damage would not have occurred had ‘reasonable care and skill’ been exercised in the provision of the digital content - even if that content was provided free of charge."
So you don't need to prove that it wasn't your fault, only that you took ‘reasonable care and skill’.
Thursday, October 01, 2015
The problem is that legal interactions cost millions of dollars, even if to prove beyond doubt to the tribunal or jury that I exercised reasonable care, which requires of course that I have extensive day by day logs of everything we did and I am willing to disclose all that and my source code to the public record.
"even if that content was provided free of charge"
It's very interesting that people will be able to sue free open source projects under this law.
What will be the effect of this? Will more free and open source software be made available to residents of nations with such laws?
They do EVERYWHERE TomTom
Monday, October 12, 2015
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