Introduction
In the history of modern-day commerce, the primary driver for exploitation has always been an element of monopoly. As in the case of motor vehicle manufacturing as exhibited by the case of the Ford Pinto, monopolies do not need to be absolute to work. As long as the consumers do not have a wide array of options, they are liable to exploitation by a producer (Costa, 2008). Modern software marketers have almost as much monopoly as motor vehicle manufactures had in the early 20 th century. The world is hooked on computers from little children playing in the house to corporate leaders, manufacturers to the military. Thousands of companies around the world can produce or assemble computer hardware but only a few companies can create software capable of easily running the hardware. The relative monopoly of software manufacturers has resulted in exploitation, inter alia through EULAs, creating the necessity for legal intervention as this research paper reveals.
Unconscionability of Software EULAs
The provision by software manufacturers that customers should take the software on an AS-IS basis is, based on a careful evaluation of the issue unconscionable. An AS-IS provision invites the consumer to accept the product as it is, or try another more suitable option. Unfortunately, when it comes to computer software, consumers do not have options and choices (Granick, 2007). For example, most computers are specifically designed to use a specific software program such as Microsoft OS, IBM OS, iOS or Android. Selecting the kind of software to use may involve the replacement of the hardware, which would be inordinately expensive. The same hardware dilemma faces large companies, hospitals, and militaries who own hardware created specifically to work with specific software. It is unconscionable to force a customer who does not have options, to take the only available option on an AS-IS basis.
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Applicability of Right of Merchantability to Computer Software
The right of merchantability should apply to computer software and in a more stringent manner that it does for most other products. For a start, a majority of the global population uses computerized gadgets, ranging from personal computers to advanced computerized systems. However, a very small percentage of computer users are computer experts (Butler, 2016). Many users of personal computers and computerized phones only known how to switch on their gadgets and follow prompts. The users have no idea regarding the inner workings of their gadgets; let alone how to influence such inner workings. Such relatively ignorant consumers deserve protection form right of merchantability laws. What the consumers act as the software marketer said they should, the software should be able to do what they marketer said it would.
Liability for Computer Software Damage
Unlike the issue of EULA as outlined above, when it comes to liability for damage occasioned by computer software, a more nuanced approach is suitable. Most computer-software programs are complicated to the extreme, more so the ones that operate complex machines (Butler, 2016). Damage may result from a complication combination of manufacturer defect, hardware problems, and user inferences. Software manufacturers should not have absolute impunity for damage occasioned by their program but they should also not take all the blame. When it comes to damage caused by computerized devices more so on a grand scale. There should be investigations that point out to the various causes on the negative outcome, similar to those that take place after an aircraft accident (Nixon, 2018). The investigations would reveal the share of blame for all components involved including the software, hardware, and end-user. Software manufacturers should only be liable for damage resulting from software defects.
Likely Outcomes to Changes in EULA Application
Changes in EULA application would have both positive and negative outcomes. Key among the positive outcomes would be consumer protection. The knowledge that software makers cannot rely on blanket provisions such as AS-IS based sales will ensure a higher level of care in software production and marketing. Consumers would have a lower propensity for purchasing defective or underwhelming software. However, such changes would also have the effect of stifling growth in the software production industry (Butler, 2016). The fear of repercussion may prevent innovative software developers from risking marketing their products. Actual liability may also lead to legal ramifications such as class action suits capable of bankrupting software developers. Implementers of EULA changes should apply care and attention to avoid wrecking the industry.
Cybersecurity Implications
Changes in EULA laws would most likely have positive implications on cybersecurity. Some information technology commentators consider cybersecurity as a long con by software manufacturers. For an analogy, the Ford Pinto engineers knew that the fuel tank could explode and had developed the solutions for the same (Pheasant & Haslegrave, 2016). Similarly, software producers know that their products are susceptible to cybercrimes. The producers also have a solution to the cybersecurity issues facing their software. However, instead of fixing the software, producers sell cybersecurity products independently, hence creating another billion-dollar industry (Burgess, 2018). It is almost as unconscionable as Ford selling inti-exploding add-ons to Pinto owners! Implementation of EULA laws with changes that hold software producers responsible would enhance cybersecurity.
Conclusion
The research and analysis above clearly support the contention that EULA contracts for software applications are unfair to end-user hence unconscionable. Restrictive contractual provisions should only made when consumers have a wide variety of choices. In the case of computer software, there is only a limited number of producers capable of making easy to use applications. In most cases, computer hardware comes designed to work with software from specific producers or marketers. The limitation of software producers and the presence of pre-programmed hardware limits the choices available for consumers. Such consumers deserve protection for the law, through preventing the use of restrictive EULA contracts. The implementation of recommendations for restricting EULA provisions should be circumspect to avoid stifling the software development industry.
References
Burgess, J. (2018, June 26). Cybersecurity: The Most Profitable Sector of 2017. Retrieved from https://www.prnewswire.com/news-releases/cybersecurity-the-most-profitable-sector-of-2017-634046713.html .
Butler, A. (2016). Products liability and the internet of (insecure) things: Should manufacturers be liable for damage caused by hacked devices. U. Mich. JL Reform , 50 , 913.
Costa, D. (2008, January 1). Jumping Through EULA Hoops. Retrieved from https://www.pcmag.com/commentary/222618/jumping-through-eula-hoops .
Granick, J. (2007). Courts Turn Against Abusive Clickwrap Contracts. Retrieved from https://www.wired.com/2007/08/circuitcourt-0801/ .
Nixon, J., & Braithwaite, G. R. (2018). What do aircraft accident investigators do and what makes them good at it? Developing a competency framework for investigators using grounded theory. Safety science , 103 , 153-161.
Pheasant, S., & Haslegrave, C. M. (2016). Bodyspace: Anthropometry, Ergonomics and the Design of Work . Boca Raton, Florida: CRC Press.
