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
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
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
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.
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