The Issue of Software

At first glance, it can be argued that it is legal for the software company to market its products with purported unknown quantity of bugs potentially present. In a keynote address given by Cem Kaner in 1997, programs are known to have issues because companies cannot fully undergo software testing for the extent of their software. Software companies do the best they can to remove bugs as much as possible prior to offering them to customers in the IT marketplace, but that still does not absolve issues from occurring and recurring (Kaner, 1997).

Any and every lawsuit that is brought up under software issues must fall within the basis of negligence, breach of contract, breach of warranty, etc.. In the case of the presented software company, they were not acting maliciously because the company had done what it could with bugs and had planned to make the necessary changes associated with the product. Additionally, a disclaimer was provided to the consumers that purchased the software regarding the specific bugs, such as the Conficker worm. Therefore, the consumers were made aware of the issues that could potentially result from the utilization of the software. It is known that software defects happen and can occur at any particular development or distribution stage (Cronin, 1985). Arguably, there are no legal ramifications for the software company per the varying laws in place regarding the software industry.

However, upon further analysis of the situation, there are legal issues that consumers could take up regarding this software company on the basis of negligence, intentional tort, and strict liability. On the basis of negligence, the company knew about the bugs and marketed the product anyway. While it is known that software products are not without issue, the company knowingly served the public with faulty software that in turn presented personal injury to the clients by way of IRS penalizations due to incorrect filing. Moreover, intentional tort identifies that a "company [must do] something very bad such as deliberately telling false stories or loading a virus on [a] computer" (Kaner, 1997). While this company did not deliberately tell falsehoods given the disclaimer, they should have noted specifically what could go wrong for consumers if they used the product.

When examining strict liability, its definition finds that a product is defective if it causes personal injury (Kaner, 1997). A consumer could reasonably bring a case to court on the basis of both strict liability and negligible because the software was known to have bugs per the disclaimer and the company sold the product anyway which in turn led to the IRS penalties based on false tax return filings. Furthermore, a legal precedent was set on the basis of Saloomey v. Jeppsen & Co and Cardozo v. True regarding liability and the utilization of companies manipulating information. This could be cited in the disclaimer (Levy & Bell, n.d.). For instance, did the disclaimer specifically identify the bugs or just inform the consumer to be careful. The UCC could also be referenced in this particular case because the company knowingly distributed the software regardless of the potential issues that could result - hence the injuries of the faulty tax returns.

While there have been arguments on the basis of software being a good or service, it stands to reason that the software company would not have a proverbial leg to stand on in court because they knowingly made the call to distribute the product to consumers on the basis that the problems would be fixed later. Consumers know and understand that when they are using products or engaging in services that issues may occur, but the issue here was not on that basis, but on the knowingness of the software company to be negligent in correcting the problems as much as possible prior to distribution.

References

Cronin, K. P. (1985). Consumer Remedies for Defective Computer Software. Urban Law Annual | Journal of Urban and Contemporary Law, 28, 273-298. Retrieved from http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1399&context=urbanlaw

Kaner, C. (1997, October 8). LEGAL ISSUES RELATED TO SOFTWARE QUALITY [Keynote Address]. Retrieved from American Society for Quality, Software Division website: http://www.kaner.com/pdfs/asqkaner.pdf

Levy, L. B., & Bell, S. Y. (n.d.). SOFTWARE PRODUCT LIABILITY: UNDERSTANDING AND MINIMIZING THE RISKS. Berkeley Technology Law Journal, 1-20. Retrieved from http://www.law.berkeley.edu/journals/btlj/articles/vol5/Levy.pdf