[long] Re: Legal traps in open source

[Alex Satrapa]

Simon Fowler wrote:
 > > As an aside, the McDonalds case you're referring to here was quite
 > reasonable: they'd repeatedly ignored similar cases, and were
 > serving their coffee far hotter than was safe,

At my house, coffee is served boiling - the kettle boils, I make the
tea/coffee, and it gets served.  If you want it colder, you blow on it.
Sensible people will ask the McDonald's drone for an ice cube, because
they know how luke-warm they like their coffee.

Suing someone because coffee is made with boiling water seems to me to
be like suing a car manufacturer because their engine gets hot.

I can almost see the alternate situation now:

Customer: "Can I have a coffee please?"
Server: "No"
C: "Why?"
S: "Because you keep spilling it on yourself, and last time you
threatened to sue us if it happens again.  So this store is exercising
its right to refuse to serve you."
C: "F**k you!"
S: "Would you like fries with that?"

 > How about we simply apply the same standards of liability as we do
 > now?

AFAIK, current standards of liability look only at actual harm caused
and actual dollars lost.  Until we find a way to represent the cost of
lost data as lives or dollars (the latter being more important in the
Australian legal system), there's no real way to estimate the damages
(or potential damages) arising from, say, Microsoft Outlook.

Then again, that's a bad example, since using Microsoft Outlook is about
as safe as having unprotected [s e x]* with someone infected with 
hepatitis, syphillus and HIV. It must really suck to work for a company 
who mandates Microsoft Outlook.

 > If you sell something, then barring gross
 > negligence the damages are proportional to the purchase price. So,
 > if you screw up seriously, you're liable for whatever the court
 > decides, otherwise you're only liable for something along the lines
 > of the original purchase price. What, exactly, is so terrible about
 > this?

Take Microsoft Outlook for example - it's a great big security incident
looking for a time to happen. It is shipped, by default, to be extremely
permissive about proliferating viruses. To me, this counts as being
about as negligent as Ford continuing to sell the Pinto even after many
of them had caught fire in minor accidents - or continuing to sell that
SUV with factory tyres after they knew the tyres were dangerous.

Microsoft's stance of, "you should protect yourself better" makes as
much sense as Ford saying, "don't have accidents if you drive a Pinto!"

Alex
*These words cause my meaningful missive to be dismissed as spam.