Liability for Computer Errors

1. Liability for Computer Errors Not covered in textbook

2. Computer errors • A range of possible consequences • Seconds lost • Data lost • $ - $$$ • Injuries and deaths • Examples: • Disfranchised voters • False arrests • Price & billing errors • Air traffic control, airplane control

3. Intrinsic & Extrinsic software • Intrinsic: • Software that is part of a completed product • Extrinsic: • Loaded onto the computer or machine of the user, user directly encounters

4. The Therac-25 Case • Radiation therapy machine • Typical system malfunctions number 40x day

5. The Therac-25 case cont’d • 20 month period, overdoses to 6 patients, directly killing 3. • Previous models, 6 & 20 • Differences to the 25? • Chronology of accidents • Please see http://computingcases.org/case_materials/therac/supporting_docs/therac_case_narr/therac_toc.html

6. What was wrong with the Therac-25 programming? • 2 modes • X-ray: high intensity beam deflected by tungsten target • Electron: removes tungsten & reduces beam intensity by factor of 100 • Quickly changing* (data entry editing) between mode resulted in electron mode not dropping the beam intensity • * If the operator was able to edit and start < 8 seconds • Use of a Race condition – 2 or more tasks sharing a variable, order that each is encountered can affect behavior of the program • The Therac-25 no longer had the hardware safety feature

7. Therac 25 • Problems • No fail safe • No dose reporting • Complicated programming • Re-use of code • Who had moral and/or legal responsibility? • Harm shown • Was there intent? • Was there negligence? • Define negligence

8. Extrinsic Software Failures • With these examples, companies or individuals are buying software for what it can do for them. • Disclaiming liability for problems through warranties

9. Software Warranties • Limiting liability to: • A refund of the purchase price • Repair of the software product • Accepting no liability for • Business losses arising out of the use of the product • Enforceability of these disclaimers? • UCC & the Magnuson-Moss Warranty Act • Mix of case law

10. Extrinsic Business Software Failures NCR’s Warehouse Manager • Warehouse Manager was an inventory program. It was developed for a different operating system than it was deployed for. • The “deadly embrace” • NCR continued selling it, claiming 200 successful installs, but that was actually on other op sys. • When problems reported, told customers that was “unique”

11. NCR cont’d • Hopper bought the system. • Did not get honest disclosure from NCR. • NCR sold it to him after product had been discontinued. • Errors about inventory and pricing resulted. • $114 item listed for 54 cents; $17 item listed as on sale for $30. • Hopper was operating a successful co., but after adoption of WM income was half. • Processes took to long & were inaccurate. Inventory inaccuracies

12. NCR conclusion • Hopper tried to sue NCR for $4.2 million. • However, the sales agreement signed by Hopper stated that in the event of problems, NCR was only responsible for the original cost of the software minus the depreciation of the equipment. • The agreement also had an arbitration clause, so the court refused the case.

13. ProCD v. Zeidenberg • ProCD selling mailing list generating software • 2 prices, 1 for personal 1 for business • Zeidenberg bought it as personal and created a mailing list sales business using the product. • ProCD sued saying this violated terms of the license • Terms not found on box but on click thru agmt • Ct found that Zeidenberg could be held to those terms of the click through agreement and was in violation of the software license.

14. Mortenson v. Timberline Software • Precison Bid software • Used it and created bid $1.95 million too low • Licensing disclaimed business losses related to use of the software in excess of licensing fee • Timberline was aware of bug, did not send fix to Mortenson. • Ct. found the Timberline was not liable b/c licensing agmt. properly limited liability.