Re: software suits, was Re: Long names are doom ?

["Marin David Condic" <marin.condic.auntie.spam@pacemicro.com>]

There is a whole bunch of contract law that can come into play that can
pretty much make everything written on paper completely meaningless. Courts
are concerned with "Did a contract take place?" not so much with "What did
the piece of paper say?" You are right. Courts can and have concluded that
inequality of the parties in terms of sophistication and level of power can
make the written contract null. Ever seen one of those things when accepting
employment from a company that outlines all the benefits and so on where it
says clearly at the top "This is not a contract..."? Guess what? Courts have
thrown that sort of thing out saying "You lead the employee to believe that
these were promises and committments - you formed a contract. Tough noogies
that you wrote 'This is not a contract...'"

I think that a good trial lawyer would probably be able to find case law and
arguments that would nullify the usual disclaimers made for software in
extreme cases of software failure. Not being a lawyer nor do I play one in
newsgroups, I could not say for sure, but it seems that a lot of those
standard disclaimers written in small type and easily blipped over when
installing software seem to be a bit unilaterally imposed and with a bit of
a disparity of power. How am I supposed to make an informed judgement about
accepting your software "as is" until I install it and test-drive it? I
can't adequately inspect the goods without installing it on my machine. And
by then I've walked past the screen saying 'I Accept' without being able to
find out that your software turns disk drives into a smouldering heap of
slag.

I think the only reason more software companies have not been handed their
asses in court is that for the most part end-users have just come to accept
as gospel that most software is buggy crap and there isn't anything they can
do about it. If you can sue cigarette companies for billions for having sold
a legal product with well known risks and blame them for the fact that you
used their product and suffered from the well known risks, why can't you sue
Microsoft? (Aside: Alcohol is also a legal product with well known risks -
notice how they're going after that too? I'm waiting for someone to discover
that a) McDonalds hamburgers are loaded with saturated fat. b) Saturated fat
is addictive and kills more people than cigarettes. c) McDonalds uses clowns
and toys to market this known health hazzard to kids. d) McDonalds, et alia,
probably have *even*more* money than the cigarette companies. e) Trial
lawyers ought to smell those profits too. Pretty soon we all should be able
to retire from productive work and just sue each other in order to make a
living.)

MDC
--
Marin David Condic
Senior Software Engineer
Pace Micro Technology Americas    www.pacemicro.com
Enabling the digital revolution
e-Mail:    marin.condic@pacemicro.com
Web:      http://www.mcondic.com/


"Larry Kilgallen" <Kilgallen@eisner.decus.org.nospam> wrote in message
news:y5Ym0m8y82Qu@eisner.encompasserve.org...
>
> Agreements not to sue are often held invalid if the defendent is judged
> to be more "sophisticated" than the plaintiff in US courts.