Information Technology Reference
In-Depth Information
As we have seen, when software is judged to be a good, the provisions of the Uniform
Commercial Code regarding damages and warranty can apply. If software were to be
considered a product, then the theory of strict liability would apply to the software
manufacturer. According to the theory of strict liability, the manufacturer is liable for
personal injury or property damage caused by a product when it is being used in a
reasonable way. Because the theory of strict liability focuses on personal injury and
property damage, but not economic loss, the primary impact of treating software as a
product would be in those situations where software is part of an embedded system,
such as an automobile.
To date, courts in the United States have resisted treating software as a product sub-
ject to the theory of strict liability, in part because a software-controlled device may cause
harm through no fault of the programmer. Consider, for example, the development of
a new software-controlled device for a medical treatment. Even practicing physicians
may have differences of opinion about the best treatment option for a particular patient.
How, then, can the company developing the device that delivers the treatment guaran-
tee that the treatment will never hurt a patient? Is it reasonable to put all the liability on
the manufacturer when others (such as hospital administrators, physicians, and techni-
cians) may share some of the responsibility? The theory of strict liability seems to put
too much liability on the software manufacturer in many cases [57].
Peter downloads a copy of the exciting new computer game Incredible Bulk for $49.95.
The game is usable, but it contains some annoying bugs. The company never releases
software patches fixing the bugs.
The next year the company releases Incredible Bulk II, which also costs $49.95 to
download. According to the product description, the new release has many exciting new
features. In addition, all of the annoying bugs of the original game have been fixed.
ETHICAL ANALYSIS
From a Kantian point of view, the company did nothing wrong. It never promised to
make available software patches to fix bugs. Users particularly worried about the quality
of a game can always wait until the reviews come out before deciding whether or not to
purchase it. In this case Peter obviously thought Incredible Bulk was worth $49.95, and
he went ahead and purchased it. If Peter now has a poor impression of the quality of the
games put out by this company, no one is compelling him to purchase Incredible Bulk
II. The software manufacturer might gain more customers and make higher profits by
providing better customer support, but that is irrelevant to this analysis.
From a social contract point of view, this arrangement is unfair. When Peter down-
loaded Incredible Bulk, he was not actually purchasing the software, he was just pur-
chasing a license to use the software. At some point before the release of Incredible Bulk
II, the manufacturer fixed the bugs in Incredible Bulk. Peter's license gave him the right
to play the improved version of Incredible Bulk. The manufacturer should have made
