[Fwd: Germany]

David Johnson david at usermode.org
Sun Jan 28 21:52:32 UTC 2001

On Sunday 28 January 2001 01:44 am, Ravicher, Daniel B. wrote:

> 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). 

There may be no ultimate distinction between commercial and non-commercial 
software, but a clear distinction can be made at the time it is sold or not 
sold. In my own case, I have "hobbyist" software that I have produced. It is 
clearly non-commercial from my end, regardless of anyone downstream selling 
it. I certainly don't want to be liable for its use or misuse. I don't want 
to warranty its merchantability because I am not a merchant. On the flip 
side, I would be more than happy to provide a 100% money-back guarantee :-)

Remember, I'm not arguing in favor of liability, only for nerchantibility.

> 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.

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.

> 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.

I completely agree. In fact, my political views are on the extreme side of 
Laissez Faire :-) 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.

> 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.

I wasn't arguing this point at all. 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 

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.

> If there are two toothbrushes on the counter, one for $1 and one for $10,
> the former with no warranty and the latter with a warranty, which would you
> buy? 

Is the lack of warranty on the former disclosed to me? If so, then it 
depends. If I only need a temporary toothbrush for a trip, I might buy it and 
take my chances. If the warranty were not disclosed to me, I could figure out 
that the former was of lesser quality than the latter, but I would still 
expect it to operate as a toothbrush.

> However, I
> can sell the school the progrm without warranties for $1 and stay in
> business.  Is it really better to have the government force me to sell to
> the school (or non-profit organization or small business or the government
> itself) with warranties?

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".

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.

David Johnson

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