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Plea for help: The detriment of using Microsoft products

On Tue, 16 May 2000, Kevin D. Clark wrote:

> Derek Martin writes:
> > Tort law is tort law.  What's the difference?  If Microsoft's products (or
> > any other software company's, for that matter) cause you to lose
> > time/money/resources, why can't they be held accountable?  It just doesn't
> > make any sense.
> IANAL, but the last time I actually read a shrink-wrap license
> carefully, I recall reading that by agreeing to this license, I gave
> up that right.

I'm not a lawyer either, but one thing I learned in Business Law I is that
companies often put such clauses in their license agreements, warranties,
and similar documents.  Often they include clauses that are not
enforceable, because they are ILLEGAL or in some cases, simply contrary to
existing law (I suppose the distinction is unimportant).  I don't know if
liability (tort law) is an example of this, but I think it may be.  How
this applies to software and its creators, only a lawyer can answer...

> Actually, here's the relevant section from Microsoft's EULA:
> : NO WARRANTIES. Microsoft expressly disclaims any
> : warranty for the SOFTWARE PRODUCT. The SOFTWARE PRODUCT and any
> : related documentation is provided "as is" without warranty or
> : condition of any kind, either express or implied, including, without
> : limitation, the implied warranties or conditions of merchantability,
> : fitness for a particular purpose, or noninfringement. The entire risk
> : arising out of use or performance of the SOFTWARE PRODUCT remains with
> : you.
> : NO LIABILITY FOR DAMAGES. In no event shall Microsoft or its
> : suppliers be liable for any damages whatsoever (including, without
> : limitation, damages for loss of business profits, business
> : interruption, loss of business information, or any other pecuniary
> : loss) arising out of the use of or inability to use this Microsoft
> : product, even if Microsoft has been advised of the possibility of such
> : damages. Because some states/jurisdictions do not allow the exclusion
> : or limitation of liability for consequential or incidental damages,
> : the above limitation may not apply to you.
> I doubt that you'll find a mass-produced software product out on the
> market without a similar license agreement.

I did not sign or even read such an agreement when I bought my first
computer with Windows on it.  I saw it in the package, but made no move to
look at it, even when you just posted it.  I certainly did not agree to
it. What choice did I have?

More importantly, if Microsoft has such a clause in their LA, doesn't that
indicate that they already KNOW your data will be damaged, at least in
some cases?  Or at least that the possibility exists, and that they're
saying they will refuse to own up to it responsibly? And you want to do
business with these people?

> Given the current state of software development, coupled with our
> current legal environment, an organization would be taking a big risk
> in releasing a software product with any other kind of license.

I'm not convinced of that.  I've been running Linux for 5 years or so now,
and I've never lost data because of a software problem.  I can't say the
same for my data on Microsoft.

[I also know that people have lost data on Linux.  This is far more rare
than on MS platforms, in my experience.]

And as the article you ponted to earlier suggests, an organization can
write perfect, bug-free code.  They simply need to make the commitment to
do it.  I agree wholeheartedly that the design process is the key.  If
your process is bad, your software will be too, except perhaps completely
by accident.

Derek Martin
System Administrator
Mission Critical Linux
martin at 

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