Thursday, September 14, 2006

Software Doesn't Need to be Perfect?

The company that makes the self-balancing Segway scooters (the two-wheeler for people) announced on September 14 that it is recalling all 23,500 of the units it has shipped to date "because of a software glitch that can make its wheels unexpectedly reverse direction, causing riders to fall off."

As discussed in prior posts, we have come to expect a lesser standard of care in the provision of software -- The sort of thing that we would never find acceptable in other areas such as how our airplanes work. Maybe this story reminds us that those two concepts are more or less impossible to sever in practice, since there are all too many physical products that may potentially injure us that are dependent themselves on software.

That much was probably obvious already to anybody who can reach this blog. What it should also suggest to those of us practicing in cyberspace is that our willingness to let our deals go forward where the software providers to a larger project are held to a lower standard than the provider of the project as a whole. If the software provider for a car's computer suggests that it cannot take liability for what might go wrong with the car, then what is the car manufacturer to do that needs that software? Should it decide that it cannot afford the cost of the vendor's sure-thing software guaranty? Should it decide that it must ultimately bring the project in-house because it can't afford to allow quality control to lie in a third-party who is not willing to be on the hook? Should it calculate the risk of a problem and insure against it rather than try to avoid fixing the problem?

These are often seemingly irresolveable problems for buyers and sellers, although that may be a reflection of the consumer willingness to pay for safety versus whether or not it can be done. That said, understanding these issues and now to describe and negotiate them are what our subset of the profession can offer to the move the debate beyond what today is often simply a battle of wills.

Wednesday, September 06, 2006

You Might Want to Look it up Before You Go to Court

In an interesting little case at the 8th Circuit involving the intersection between 'computer program' and 'data' and the application of the Computer Software Rental Amendments Act of 1990, the court took pains to suggest that the lawyer arguing the case at District Court for the (alleged...) copyright holder did not even understand a fundamental concept in the world of copyright registration:

Indeed, the term source code is nowhere to be found in Action Tapes’ pleadings and motion papers, and at the summary judgment motion argument counsel did not know the meaning of that term.

Oops. I would not want to presume anything about whomever was arguing the case, since it may have been a last minute substitution. But, there was obviously a mishandling of the registration of the copyright (and, maybe I need to reconsider my rule-of-thumb that lawyers are rarely needed in actual registration practice for copyright). It clearly is a lesson for the rest of us -- These technicalities are important but oft-times relegated to the last minute if at all.

Although the case ended up turning on a technicality (failure to register the copyright prior to litigation), the court did offer some thoughts on the underlying theories suggesting that it would have likely decided the case against the copyright holder in any event. The case involved a company that made programs that controlled sewing machines making patterns. The program uses memory cards that contained the instructions for the pattern that was being sewed. A retailer made a habit of lending out memory cards to her customers (although unstated in the opinion, I presume that the computer program itself was not lent out, just the memory cards with the instructions).

The copyright holder sued, claiming that the lending out of the memory cards was an infringement based on the Rental Act's prohibition on lending out copies of 'computer programs' (a specific statutory exemption from the first sale doctrine). The defendant argued that the memory cards did not comprise a 'computer program,' and therefore were still subject to the plain old First Sale Doctrine rules (which allow one to lend, rent or otherwise dispose of a particular authorized copy of a work once it has first been sold under the authority of the copyright holder). The District Court agreed and granted summary judgment on that basis. The 8th Circuit did not reach the question since it noted that the registration used by the plaintiff was not properly done for a 'computer program,' which, among other things, requires that the source code for the program be filed with the registration (which had not been done) -- Thus, deciding the case on the ground that the plaintiff had no case because it "failed to prove it applied for registration of the computer program copyrights before commencing this infringement suit." The plaintiff tried to duck the problem by noting that it still held a valid copyright in the visual design, and again the court noted that even if that were true the exemption from the first sale doctrine only applies to computer programs and not to visual designs.

Although our group focuses on our 'cyberspace' commonality, many of us are frequently brought in for intellectual property concerns, and particularly where computer programs or the like are involved. Or, rather -- We should be brought in. Yet another reason to seek out attorneys who have the knowledge and background to know what Source Code might be...

Tuesday, September 05, 2006

U.S. District Court Takes Judicial Notice that Computer Services Stink

OK -- They never quite said it that way. But, how else can a cynic like me interpret this quote?

Although issues may have arisen as to the services provided, there is no plain, clear language in the Service Agreement requiring NBS to implement a system free of bugs without opportunity to remedy technical problems. Reading this type of requirement into any contract involving computers or software would render virtually every provider of computer services or software in breach of their contracts.

That might seem to make sense at first blush, but how much is that true just because we've become so used to it? Try substituting "airplane passenger service" in place of 'computers and software' in that last sentence -- No court would ever say such a thing. Why is such an important sector of our economy still working under a lax standard of care after many decades of opportunity to standardize systems and interconnections (usually the first excuses given for why a new IT widget won't work in anybody's environment)? (Note that the provider was quick to resort to the courts to enforce it's side of the bargain...)

The decision out of the USDC for Minnesota can be read here.