Evil Software Licenses (more Bloodrain Bait)

edited November 2001 in General Discussion

Comments

  • edited December 1969
    Here's the crux of the Myth 3 problem, and the reason why you don't have a leg to stand on if you try to file a class action against Take Two.

    Those of you who are supporting the fraudmongers, take a look at the license you agreed to when you opened the package. (Don't even get me STARTED on the absurdity of shrinkwrap licenses...)

    I bet there's a phrase in there that reads something like this:

    "Limited Warranty. Publisher expressly disclaims any warranty for the Software. The Software is provided "as is," without warranty of any kind, eiither express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose or noninfringement..."

    Nearly all software licenses include language like this, and the effect of them is to preclude the publisher from liability if it is proven that the software is harmful ... or even utterly useless. Basically, you have no legal recourse once you agree to such a license. What's worse, your license agreement also probably contains language like this:

    "Limitation of Liability. NEITHER PUBLISHER, ITS PARENT, SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES..."

    So... even if you could prove that they intentionally released a pile of dogshit that caused your computer to crash regularly and randomly deleted a file every time it was run... you could collect no damages. They're not liable. It's your fault. You ran the software.

    Software companies suck ass.

    _/ C

  • edited December 1969
    I posted...

    The passage over at MV a week or two ago straight from the instruction booklet. It effectively says, just like all of 'em, that they aren't liable for anything, ever, under any circumstances, even if the product never works and causes cancer. It even specifically mentions that they are under no obligation to correct problems with the software.

    'course that song and dance only stands till someone knocks it down, but I don't think a bunch of gamers are going to do it. :-)

    Ramses II
  • edited December 1969
    Re: Evil Software Licenses (more Bloodrain Bait)

    I bet there's a phrase in there that reads something like this:

    "Limited Warranty. Publisher expressly disclaims any
    warranty for the Software. The Software is provided "as
    is," without warranty of any kind, eiither express or
    implied, including, without limitation, the implied warranties
    of merchantability, fitness for a particular purpose or
    noninfringement..."

    Nearly all software licenses include language like this, and the
    effect of them is to preclude the publisher from liability if it
    is proven that the software is harmful ... or even utterly
    useless. Basically, you have no legal recourse once you agree to
    such a license. What's worse, your license agreement also
    probably contains language like this:

    "Limitation of Liability. NEITHER PUBLISHER, ITS PARENT,
    SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS
    OR DAMAGE OF ANY KIND RESULTING FROM THE USE OF THE SOFTWARE,
    INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE,
    COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL
    DAMAGES OR LOSSES..."

    So... even if you could prove that they intentionally released a
    pile of dogshit that caused your computer to crash regularly and
    randomly deleted a file every time it was run... you could
    collect no damages. They're not liable. It's your fault. You ran
    the software.

    Maybe. Class action plaintiffs' attorneys are clever bastards. They may be able to make a claim that T2 committed consumer fraud (or just plain fraud) when they released M3, and that might let them avoid the contractual protections.

    And if a situation is particularly grievous or egregious, courts may ignore the contract language. A showing of intentional misconduct is often a way to avoid contract provisions.

    And just to play devil's advocate here, those provisions are not inherently evil. They are intended to account for the fact that people run software on any number of different systems and configurations, and there is no way the publisher could possibly anticipate all the stupid things people will try to do with the software. The publisher should not be liable if some porn viewer you downloaded from God-knows-where interferes with the operation of its game software... and if that interference somehow causes your computer to melt, shutting down your rabbit online breeding service business for six months, the publisher of the game shouldn't be liable for the profits you would have made for those six months.
  • edited December 1969
    Legal (ahem) Mumbo Jumbo (long)

    I'd like to continue baiting Bloodrain but only in one place ...

    Well, to be accurate, "racketeering" ...

    Yeah, I knew as soon as I posted that that I probably didn't get the definitions spot on... my heart was in the right place, though. ;-)

    As for "fraud," well, there's a place where reasonable
    minds differ. [...] there are a
    variety of reasons why a software company might be sued for
    breach of warranty that have nothing to do with problems in the
    software itself [...]

    I completely agree that no publisher or developer can reasonably be held liable for the operation of software on every concievable machine configuration. However, the situation we're talking about is egregious. Products are often intentionally misrepresented even on the product packaging. Features are missing, don't work as advertised, or don't work AT ALL until a patch is released. Most software (even non-entertainment software!) these days is not released when it is finished. It is released when a company can no longer bear development costs without recognizing some revenue from their obscenely late product.

    In some cases, my profession is as much to blame as the bean counters. It is possible -- and it's not really even that hard -- to make realistic software development schedules. Even if you lack experience in a particular field, general software development and business experience can help you make reasonable estimates about the overall resource & time costs of a software project.

    The problem is, more often than not, one of hubris. Nearly every engineering manager I've ever worked for always believed he and his team could bring it in sooner, with optimistic assumptions and little or no allowance for contingencies. In this case I make intentional use of the masculine gender--the one time I have not suffered from this kind of planning, the team was led by a female manager with a product development (not strictly engineering) background.

    Alas, engineering managers continue to believe their own lies, and convince the money side of the equation that this project will be different. This one won't slip. It won't need feature triage days before release. The QA schedule won't be compressed out of existence by feature creep.

    Traditionally programmers toss the liability over the fence into the marketing side of the business, citing irrational requirements, or unstable specifications, or lack of market definition, or whatever ... While those situations do happen, that's a story for a whole 'nother rant.

    In the world you want, where software developers are held
    accountable for software that doesn't conform to the developer's
    claims, you'd see ads like this [...]

    No... really the world I want is a world where companies don't promise that a product has feature X, Y and Z when in fact it has features Q and X, and regardless of what other software you're running, feature Q will crash your computer and cause you to lose data due to an inherent flaw in the programming which was not detected by the nonexistent testing done on the final product.

    There are exceptions, and dare I say it, Microsoft is one. They take great care to test that the claims they make for their software as delivered actually works most of the time. MS is in a particularly bad situation due to the untestable combinatorics of PC configuration, but let's be honest--usually their stuff is free from dumb obvious errors or omissions.

    Of course, Microsoft more than makes up for their product development success with their predatory and illegal business practices.

    Many game releases that have happened in recent memory have been full blown train wrecks. Forget Myth 3. Tribes 2 was apparently only tested on the configuration used by the developers themselves, then left to founder by its publisher. Call To Power II had similar problems; many of the features touted in marketing materials were either missing or very broken, then Activision dropped the product like a hot potato. A recent sci-fi MMORPG (whose title escapes me at the moment) was released in a completely unplayable state (!). Players could typically play for a few minutes at a time.

    Now... you would think that this sort of situation would be self correcting, but it's not. Part of the problem is the gaming press, which continues to post obnoxiously glowing reviews for even the buggiest games. Why shouldn't they? These days there's an inherent conflict of interest in nearly any game review issuing from an established publication--mags and even many web sites live and die by the fortunes of their advertisers; they lack other significant sources of revenue.

    The other thing that lets game publishers keep pumping out crap is the eternal hopefulness of gamers. We just want to have fun. Evil Game Publishing Conglomerate wouldn't possibly fuck us over again... would they?

    Maybe the past few years of shoddy releases and endless patches (or lack thereof) will make a difference.

    Or maybe everyone will just go buy an Xbox.

    _/ C

  • edited December 1969
    [b]Re: Legal (ahem) Mumbo Jumbo (long)[/b]

    [quote]
    Yeah, I knew as soon as I posted that that I probably didn't get
    the definitions spot on... my heart was in the right place,
    though. ;-)

    [/quote]
    Absolutely, but as the resident Legal Wonk, I was required by law to be pedantic. 8-)

    [quote]
    I completely agree that no publisher or developer can reasonably
    be held liable for the operation of software on every
    concievable machine configuration. However, the situation we're
    talking about is egregious. Products are often intentionally
    misrepresented even on the product packaging. Features are
    missing, don't work as advertised, or don't work AT ALL until a
    patch is released. Most software (even non-entertainment
    software!) these days is not released when it is finished. It is
    released when a company can no longer bear development costs
    without recognizing some revenue from their obscenely late
    product.

    [/quote]
    I understood where you were coming from, and I think I understood where you were going. I guess my point was that the liability protections in software licenses (and maybe that was a different thread) are not simply Get Out of Jail Free cards for shoddy developers. There are real, valid reasons why developers need those protections -- not to shield them from liability for bad behavior, but to protect them from predatory plaintiffs' attorneys who are, of course, experts at extracting costly settlements from corporations.

    [quote]
    In some cases, my profession is as much to blame as the bean
    counters.

    [/quote]
    Let's not forget marketers. And executives. Everybody in the company has an agenda, and it seems that in the software industry particularly, product development concerns take second or third place behind revenue concerns -- which drive the execs, bean counters and marketers. (Someone should point out to them that "revenue" is not really a good measure of a company's value, that "profits" is a much better gauge, and that putting out shoddy products may create revenue but will ultimately lead to lower profits.)

    [quote]
    Alas, engineering managers continue to believe their own lies,
    and convince the money side of the equation that this project
    will be different. This one won't slip. It won't need feature
    triage days before release. The QA schedule won't be compressed
    out of existence by feature creep.

    [/quote]
    I liked this article that Conner pointed out in another board: http://www.construx.com/stevemcc/bp05.htm. It says a lot about these kinds of problems.

    [quote]
    No... really the world I want is a world where companies don't
    promise that a product has feature X, Y and Z when in fact it
    has features Q and X, and regardless of what other software
    you're running, feature Q will crash your computer and cause you
    to lose data due to an inherent flaw in the programming which
    was not detected by the nonexistent testing done on the final
    product.

    [/quote]
    Well, I think that there is probably a happy medium world, where software companies do a reasonably thorough amount of testing and try to resolve significant issues that still slip through as quickly as possible.

    [quote]
    There are exceptions, and dare I say it, Microsoft is one. They
    take great care to test that the claims they make for their
    software as delivered actually works most of the time. MS is in
    a particularly bad situation due to the untestable combinatorics
    of PC configuration, but let's be honest--usually their stuff is
    free from dumb obvious errors or omissions.

    [/quote]
    Microsoft has two advantages: (1) They have been in the business long enough to develop a solid understanding of the limits on development time and the relationship between available resources and those limits; and (2) they have effectively unlimited resources.

    [quote]
    Of course, Microsoft more than makes up for their product
    development success with their predatory and illegal business
    practices.

    [/quote]
    And serious security holes. I wonder if that is a product failure or an intentional business practice.

    [quote]
    Now... you would think that this sort of situation would be self
    correcting, but it's not. Part of the problem is the gaming
    press, which continues to post obnoxiously glowing reviews for
    even the buggiest games. Why shouldn't they? These days there's
    an inherent conflict of interest in nearly any game review
    issuing from an established publication--mags and even many web
    sites live and die by the fortunes of their advertisers; they
    lack other significant sources of revenue.

    The other thing that lets game publishers keep pumping out crap
    is the eternal hopefulness of gamers. We just want to have fun.
    Evil Game Publishing Conglomerate wouldn't possibly fuck us over
    again... would they?

    [/quote]
    In the last decade, there was also an economy that encouraged unrealistic expectations of success, regardless of quality. I think a lot of software companies drank that Kool-Aid, and now that the economy has turned, they're finding out that the assumptions on which they were established -- easy availability of funding, low level of scrutiny of real results -- are no longer applicable. So the ones that remain are scrambling to readjust and to get the market to think they really truly are valuable -- which means getting product onto the market for the Christmas selling cycle, to generate revenue, to hopefully fool lenders and parent companies into keeping them afloat.

    It's a difficult situation. I don't know that boycotting game software (or any software), or taking legal action against shoddy developers, is the answer, but I'm not sure what is.

  • edited December 1969
    I have a question for BR....


  • edited December 1969
    Message Deleted....Sorry bout that... [nt]


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