Using law to make changes in something like software development is like using a sledgehammer to drive in a tack. It works after a fashion, but it tends to leave big dents. I say this in response to this idea of software liability with an out for open source code. From the Linuxjournal column, quoting Bruce Schneier:

The key to understanding this is that this sort of contractual liability is part of a contract, and with free software -- or free anything -- there's no contract. Free software wouldn't fall under a liability regime because the writer and the user have no business relationship; they are not seller and buyer. I would hope the courts would realize this without any prompting, but we could always pass a Good Samaritan-like law that would protect people who distribute free software. (The opposite would be an Attractive Nuisance-like law -- that would be bad.)

Now, consider what might happen if that kind of liability were present (especially given the size of some of the awards given out in consumer liability cases), and where incentives would be pushed. Would it be safer for a big company - Microsoft or Oracle, for instance - to keep selling licenses, or to push their stuff out under an OSS license and start selling support services? Their biggest customers are mostly paying for support as it is; it might well be safer to move all the way over into that column.

Does this mean that having liability laws cover software is a bad idea? I don't know; I'd have to really sit down and think about all of the implications. One thing's for sure though: I doubt that the off the cuff answer given in the Linuxjournal column would work out the way they expect...

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