The European Union is considering an extension of consumer protection laws to software. This means that users could sue manufacturers for software that is considered “broken.” To make matters worse (for everyone except lawyers), this would apply not only to proprietary software but to open source software as well.

If this proposal becomes law, expect Europe to become the software equivalent of a nuclear wasteland, seeing as no one in their right mind would be willing to subject software to this level of scrutiny. It is difficult enough to write software like this and assigning blame would be tricky. For instance:

  • How does a customer prove it was your application and not another application (or the OS) causing the problem?
  • How much “reasonable effort” to mitigate problems should you take before you are held blameless?
  • How do you put the equivalent of a “do not stand on top step” sticker on an application?

The worst part is I understand why people are pushing for this proposal. As an industry, we have been failing to do a good job for the last 50 years; our almost 70% project failure rate is worse than the weatherman’s prediction success rate. But the solution isn’t to make these kinds of blanket, sweeping laws; the proper solution is already in place: service level agreements (SLAs).

If customers want software with a protection level stronger than as is, they should buy from a vendor that backs their products with an SLA. When the software doesn’t meet expectations, the SLA contract triggers penalties, and you have legal recourse in the form of breach of contract lawsuits. It’s really very simple.

To get this level of protection from a vendor, you need to be spending big bucks and have a squad of lawyers on hand to enforce the SLA; it puts this kind of enforceability out of the reach of typical consumers and many (if not most) small businesses. And this assumes that SLAs are perfect, which they aren’t — thought at least they are potentially well-defined. Instead, this proposal is simply a treasure trove for lawyers. (Forget about legally holding open source code to anything unless a vendor wants to voluntarily stand behind it. Check out ZDNet blogger Dana Blankenhorn’s post, “Open source shrugs at EU liability plans.”)

Imagine if this proposal becomes law. The first thing that would probably happen is that Richard Stallman would try to sue Microsoft into oblivion, and given the EU’s attitude toward Microsoft, it might just work. Simultaneously, every proprietary software vendor with a mean streak would sue all of its open source competition, knowing that few open source projects have the resources to pay for lawyers. ZDNet blogger Mary Jo Foley reports that Microsoft and the Linux Foundation have already issued a joint letter opposing the proposed software-licensing principles.

The whole thing is a disaster. Every person who feels that their OS or database or instant messaging client or whatever doesn’t meet expectations will consider suing. Does this apply to Web sites? If Google makes it look like a site has the information I want, but the site doesn’t, do I sue Google or the site itself?

It makes me think of Ghostbusters: “Cats and dogs living together… mass hysteria!” That’s the only possible outcome of this proposal. While it is understandable that people expect more from software and often deserve much better for their money and time than they are currently getting, this proposed legislation is not the answer.


Disclosure of Justin’s industry affiliations: Justin James has a working arrangement with Microsoft to write an article for MSDN Magazine. He also has a contract with Spiceworks to write product buying guides.


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