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MOLINARI LEGAL CONSULTANCY
Sheikh Zayed Road
Emarat Atrium, Suite 306
P.O. Box 58006, Dubai, U.A.E.

Tel  00971 4 3431903
Fax  00971 4 3431901
E-mail   molinari@emirates.net.ae
 

 

Surveillance, Technology and Privacy
The Individual and Data Protection
Transborder Data Flow
TAX and the INTERNET
Software Information and the Legal Environment
The Internet, World Wide Web and Cyberspace
Software Information and the Legal Environment
Software, Contracts and Quality
Software Licenses and Exclusion of Liability
The Seventh Report on Implementation of Telecommunications Regulatory Program
The move towards the Liberalization of Telecommunications in the United Kingdom
The Dubai Arbitration Law: Alternative Dispute Resolution
PROVISIONS ON CHEQUE
Hardware and Software Contracts
Finanza & Diritto 2010
ZONE FRANCHE IN DUBAI - UNITED ARAB EMIRATES
TEST

 

Article 1

INFORMATION SECURITY - LEGAL ASPECTS
Surveillance, Technology and Privacy

The Internet can be defined as one of the most revolutionary invention of the technological development in the history where millions of bit of informations travel around the world connecting daily million of people and providing data, information and access to numerous services through the World Wide Web. The users can navigate through the Web and this has become the dominant, most popular and unexpensive way of communication.....

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Article 2

The Individual and Data Protection

"Data" (plural form of the singular word datum) may be defined as a collection of non-random facts recorded by observation or research that are considered to have little or no value until they have been processed and transformed into information. Today the information system form an integral part of the modern organizations and businesses which support all aspects of an organizations normal functions and activities and the Information Technology is not longer considered a business resource but it became our business environment.

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Article 3

Transborder Data Flow

Technology today enables government, organizations and companies to collect and store a large number of personal information and if this fact from one side simplifies and develops the modern way of life on the other expose everyone to a potential and hidden threat. One of our actual concerns is which type of exposure we could have if a foreign government department or company or organization would be given access to all our available information.

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Article 4

LEGAL ASPECTS OF INFORMATION TECHNOLOGY
The Individual and Data Protection

"Data" (plural form of the singular word datum) may be defined as a collection of non-random facts recorded by observation or research that are considered to have little or no value until they have been processed and transformed into information. Today the information system form an integral part of the modern organizations and businesses which support all aspects of an organizations normal functions and activities and the Information Technology is not longer considered a business resource but it became our business environment.

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Article 5

LEGAL ASPECTS OF E-COMMERCE
The Internet, World Wide Web and Cyberspace

The Electronic Commerce (EC) changed the concept to conduct business in the twenty-century and since its implementation the world itself became a global market place without physical boundaries. EC represents the process of conducting transactions electronically through reliable and secure connections rather than by physical exchange or direct physical contact. EC can be identified in four major categories as business-to-business (a company that uses a network for receiving orders, invoicing, payments from its suppliers) and business-to-consumer (electronic retail where consumer goods are offered directly to customers through web), business-to-administration (transaction between companies and government organizations), consumer-to-administration (direct government electronic interaction with consumers as for instance the tax authority rolls out a service to allow taxpayers to submit their tax return electronically.

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Article 6

LEGAL ASPECTS OF E-COMMERCE
The Internet, World Wide Web and Cyberspace

The Electronic Commerce (EC) changed the concept to conduct business in the twenty-century and since its implementation the world itself became a global market place without physical boundaries. EC represents the process of conducting transactions electronically through reliable and secure connections rather than by physical exchange or direct physical contact. EC can be identified in four major categories as business-to-business (a company that uses a network for receiving orders, invoicing, payments from its suppliers) and business-to-consumer (electronic retail where consumer goods are offered directly to customers through web), business-to-administration (transaction between companies and government organizations), consumer-to-administration (direct government electronic interaction with consumers as for instance the tax authority rolls out a service to allow taxpayers to submit their tax return electronically.

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Article 7

LIABILITY IN THE INFORMATION SOCIETY
Software Information and the Legal Environment

The modern organization and businesses of the new millennium are using extensively the information technology to such an extent that we can say that all aspects and functions in our lives are totally dependent on it. The social vulnerability and great concern in the matter were clearly highlighted by the Year 2000 Millennium bug when the world-wide estimated costs for checking and repairing the information systems amounted to the figure of £ 400 billions.

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Article 8

LIABILITY IN THE INFORMATION SOCIETY
Software, Contracts and Quality

The issue of legal liability related to defective software products is assuming considerable importance as the software is being increasingly used in all aspects of our life. As the software applications become more critical and our lives depend on these , the public demand for quality software products increases, especially for defect-free products or at least seeking full protection against any possible defect.

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Article 9

LIABILITY IN THE INFORMATION SOCIETY
Software Licenses and Exclusion of Liability

The rapid expansion in use of the Internet and the constant rapid growth of electronic commerce has generated new areas of software licensing by software developers. In fact the needs of the information age have developed new business solutions such as portals so that people can find quickly and easily what they most need in one place. As a result of these increasingly sophisticated market driven demands, it is very important for software developers to ensure that customers are kept satisfied, while at the same time ensuring the maximum value of software products.

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Article 10

LEGAL ASPECTS OF TELECOMMUNICATION
The Seventh Report on Implementation of Telecommunications Regulatory Program

During the last decade the EU concentrated in an intensive regulatory activity covering the Telecommunication sector toward two focused issues, harmonization of national laws by the Member Sates by adopting standardized, transparent rules in relation to the licensing of telecommunications service providers and implementation of a Open Network Provision as well as liberalization and opening the market to competition. As a matter of fact, a lot of legal documentation and material, enclosing 20 Directives, have dealt to general and specific issues in the European Telecommunication field.

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Article 11

LEGAL ASPECTS OF TELECOMMUNICATION
The move towards the Liberalization of Telecommunications in the United Kingdom

We have witnessed incredible evolutions in the UK Telecommunications during the twentieth 12 century . The Telecommunication Act 1984 (the Act) is considered a landmark in the UK 3 Telecommunication System since it has been designed for three main objectives: first of all, that to transfer the majority of shares of British Telecom from public to private shareholding sector; second, to set up the Telecommunication Office called OFTEL as supervisory body of telecommunication licenses users and the regulator of the UK telecommunication system in order to assure the best quality, choice and value for money for all services; third, to confirm the 4 principle that it is unlawful to operate in the telecommunication sector unless an appropriate license has been issued. OFTEL promotes competition by encouraging new entrants into the telecom market and protects consumers when necessary, through price controls, universal service 5 obligation and other measures.

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Article 12

The Dubai Arbitration Law: Alternative Dispute Resolution

Dr. Ottavia Molinari (LLM) (ACIArb) is the owner of Molinari Legal Consultancy Law house. Ottavia is also IBCD Vice President and Treasurer.

With the gradual removal of political and trade barriers and the rapid globalization of the world economy, new challenges have been created for arbitration institutions in response to the growing demand of parties for certainty and predictability, greater rapidity and flexibility as well as neutrality and efficacy in the resolution of international disputes. Arbitration is the most common form of alternative dispute resolution that refers to any means of settling disputes outside of the courtroom with a basic version of a trial involving no discovery and simplified rules of evidence by reducing court queues, rising costs of litigation and time delays for the litigants. The key elements of international arbitration to be pursued are in fact enforceability, party-control, neutrality, privacy and confidentiality, cost-effectiveness and speed. In the Emirate of Dubai, the Dubai International Arbitration Centre "DIAC" of the Dubai Chamber of Commerce & Industry "DCCI" provides qualified international & domestic conciliation & arbitration services for the resolution of international commercial contracts & local commercial disputes by ensuring the application of the Rules of Conciliation & Arbitration of DCCI with responsibility for examining the merits of the case and rendering a final award. In this regard it is important to mention that recently the Cabinet of UAE have internally approved the ratification of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"). However, the same has not yet been promulgated in the Official Gazette of the Federal Government that is expected to take place soon. This ratification will line up the UAE with more than 80 countries already subscribed to the New York Convention. The Convention requires courts in subscribing countries to enforce arbitration awards as if the awards were made in that country, subject to limited grounds on which enforcement may be refused. Until the ratification, since the UAE was not a signatory to the Convention, arbitration awards given in the UAE could not be enforced abroad in absence of specific enforcement treaties between the countries were entered, which led to frustration of arbitration proceedings. Article 1 (3) of the New York Convention states that a signatory Country may on the basis of the principle of reciprocity, declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another contracting State. Article 2 (1), (2) of the New York Convention states that each contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, which are considered as commercial under the national law of the State making such declaration. The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. With the tremendous grow of business in the UAE attracting more and more investors worldwide, the ratification of the New York Convention will definitely provide more guarantees in the event of disputes to the potential contracting parties in their transactions.

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Article 13

PROVISIONS ON CHEQUES

A Check or Cheque (borrowed from Persian ?? Chek) can be defined as a negotiable instrument drawn against deposited funds for payment and undertaking to pay a determinate amount of money to a specific person upon demand based on existing legitimate reasons.

* A Drawer: The person who signs and issues the cheque.
* A Drawee: The licensed bank where the cheque can be presented for payment.
* A Payee: The person to whom the drawer issues the cheque.

According to Article 618 of the UAE Federal Commercial Transactions Law No. 18/93 "A cheque drawn and made payable in the Country or abroad must be presented for payment within six (6) months. The time limit mentioned shall run from the date shown in the cheque as to be the date of issue. Presentation of a cheque to a bank, reserving its value by telephone or cable from such bank with drawee bank, as well as presentation thereof to a legally recognized clearing house shall be considered presentation for payment."

Dishonoured Cheque. A cheque is said to be dishonoured when the cheque presented is returned unpaid by the bank with an endorsement, for any of the following reasons:

1. Insufficient funds
2. Exceeds Arrangement
3. Account closed
4. or any other reason which the drawer's bank states in its endorsement.

Bounced Cheque. When a bank refuses to cash or pay a check because funds in the account it is written on or against are insufficient to cover the check.

"Not negotiable" cheques. Most people "cross" their cheques and write the words "not negotiable" between the lines to restrict payment to the payee only. This is a good idea because it informs the bank that the cheque should not be paid on demand but instead must be paid into the payee's account.

Bank mistakes. If the bank does not follow your instructions as identified on the cheque, this would be considered a breach of the contract between the bank and yourself. You may be able to recover damages or compensation; however, it would be important to consult a legal professional.

CHEQUE BOUNCED

The UAE legal system adopted the Latin legal system by considering the cheque instrument of payment as substitute of money, consequently the non-payment of cheque can be pursued not only through civil litigation but also as a crime that makes necessary to inflict criminal punishment under criminal proceeding as per Article Art. 401 of the Federal Penal Code n. 3 of 1987 which reads:

" Shall be punishable by confinement or fine any individual who, in bad faith, draws a cheque which does not have provision which could be withdrawn or which has a provision less than the amount of cheque or who, in bad faith, after issuing a cheque withdraws all or part of the provision and renders the balance in sufficient to settle the amount of the cheque or, in bad faith, orders the drawee not to pay the value of the cheque or, in bad faith, draws or signs a cheque in such a manner as to prevent it from being paid ".

Three main elements are stipulated to realize the crime of bounced cheque:

1. The issuance of the cheque;
2. Absence of funds or balance; and
3. Criminal intention (bad faith).

The implementation of criminal protection by the Federal Penal law in the UAE makes aware that, in general, in case of return of the debtor's cheque followed by immediate filing of the complaint to the Police in the area of jurisdiction where the cheque has been handover, the later will be jailed for a quite long time. Usually, such type of action is representing serious threat that makes pressure on the drawer to pay the value of the cheque. However, the aim of the punishment is not to recover the claimed amount but only to restrain the criminal offence.

Punishment. Drawer shall be punished with imprisonment that may not be less than one month and not more than three years or with fine not less than Dhs. 100/- and not exceeding Dhs. 30,000.00/-.

Recidivism. The Civil Court may order in addition the punishment of publishing the extract of the judgment in a daily newspaper, to withdraw the chequebook of the convicted and to ban granting new chequebook for a period to be decided by the court.

Security Cheque. However, in consideration that the cheque is an instrument of payment and undertaking to pay its value based on legal grounds, the drawer would be allowed to proof the real reasons behind the issuance of the cheque. A cheque expressively made as security for performance of obligations or as a trust could not be the basis for a criminal charge. In this event the case will be heard by Civil Court only.

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Article 14

 

 

Hardware and Software Contracts :

Legal Status & Defect Liability

 

 

 

 

 

 

 

 

by Ottavia Molinari

  

 

 

 TITLE :

Hardware and Software Contracts :

Legal Status & Defect Liability

 

 

1.           INTRODUCTION

              ………………………………………………………………………….….…pag. 2

 

2.           INFORMATION SYSTEM

              ...………….………………………………………………………………….pag. 4

       

3.           THE LEGAL STATUS OF COMPUTER

              ...………………………………………………………………………….….pag. 6 

              

              THE LEGAL STATUS : Hardware

              ………………………….…………………………………………………....pag. 8

 

              THE LEGAL STATUS : Software     

              …….……………………………………………….…………...……………pag. 9

 

 

4.           SHRINK-WRAP LICENSE

               ………………………………………………………………………….……pag.13

 

 

4.1         CONTROVERSY OVER THE SHRINK-WRAP LICENCE

              …………………………………………………………………………..…..pag.14

 

 

4.2         "CLICK-WRAP"

 

              …………………………………………………………………………..…...pag.16

 

4.3         SHRINK-WRAP LICENCES UNDER US LAW

              …………………………………………………………………………....….pag.17

 

4.4         SHRINK-WRAP LICENCES UNDER UK LAW

              …………………………………………………………………………….…pag.22

 

4.5         SHRINK-WRAP LICENCES UNDER EU LAW

               ………………………………………………………………………………pag.24

 

5.           CONTRACTUAL  LIABILITY&  INTERNATIONAL LAW

              ………………………………………………………………………….…...pag.26

 

6.          LEGAL LIABILITIES & COMPUTER

              ……………………………………………………………………………....pag.27

7.           SOFTWARE’S QUALITY & FAIR USE

              ……………………………………………………………………………….pag.28

8.           DAMAGES & LEGAL LIABILITY

              ………………………………………………………………………….…….pag.31

8.1         THE CONTRACTUAL LIABILI..…………………………….…...pag.34

8.2         NON - CONTRACTUAL LIABILITY………………………...….pag.35

 

9.              CONCLUSIONS

               …………………………………………………………………………....…pag.38

 

 

 

 

 

 

 

 

1.INTRODUCTION

 

The Internet can be defined as one of the most revolutionary invention of the technological development in the history where millions of bit of information travel around the world connecting people daily and providing them withdata and access to numerous services through the World Wide Web.

 

In this dynamic environment the information technology is continuing to transform global communications and the world economy with innovative products and services. In fact, over the last two decades in particular, the marriage between computers and telecommunications into digital communication technologies such as the Internet has achieved growing impact on day-to-day practices as well as on our society. The users can navigate through the Web and this has become the dominant, most popular and inexpensive way of communication shaping and changing relationships of every aspect of life and social institutions. The information system forms an integral part of the modern organization and businesses by supporting normal functions and activities to such an extent that information technology is nolonger considered a business resource but it has became integral part of our business environment with our lives totally depending on it. A computerized information system is a combination of hardware, software, database(s), telecommunications, people and procedures all organized in such a way as to input, process and output data and information.

 

There is a common consideration that technology does currently exist to secure a platform access to the system information, high-valued transactions and communications over the Internet. Recording and transmitting data under electronic form has many advantages compared with traditional methods and today it is extensively utilized in the commercial and administrative activities. Documents can be made available almost instantly, even in large quantity and the recipient is able to work on them directly. The electronic transmission is considerably cheaper and faster with respect to other transmissions and documents can be sent around the globe in a matter of seconds, without delay. Important sources for securing trustworthy data transmission and communication over open networks are provided by authentication and integrity services. The speed of technological progress implies that many of the potential application fields for authentication and integrity services are difficult to ascertain at this stage while new application areas such as protection of intellectual property rights, stored data, network security or electronic cash are developing continuously. In particular for electronic communications the digital signatures are considered to play a significant role.

 

If from one side, the worldwide success of the electronic commerce for transacting goods or services is due to the low costs factor and open and easy accessibility by anybody, on the other, the fact that the transactions including payments are conducted via the Internet has created new concerns on the security of the electronic transmissions of data as it has been observed that computer hackers may detect, intercept and manipulate original messages. The same types of fraud scenarios, which have victimized consumers and investors for many years before the creation of the Internet, are now appearing online. With the explosive growth of the Internet and E-commerce in particular, online criminals try to present fraudulent schemes in ways that look, as much as possible, like the goods and services that the vast majority of legitimate E-commerce merchants offer and this is creating difficulties in detecting preliminarily such fraud cases. Cyber criminals not only cause harm to consumers and investors, but also undermine consumer confidence in legitimate E-commerce and the Internet. The new forms of fraud and forgery have intensified the effort to create a secure and trustworthy way to conduct business through computer and analysts and experts worldwide are creating solutions to preserve security, integrity and confidentiality, otherwise all advantages offered by the electronic commerce could be easily nullified. As a result, many organizations, including law enforcement agencies, are concentrated to develop procedures to maintain tight security and to protect privacy. The base for providing a secure and trustworthy E-commerce should be supported by a favorable policy government in facilitating the growth of commercial infrastructure by supporting the emerging security technologies.

 

Businesses around the globe have developed better and safer services, greater efficiency and effectiveness by reducing expenses, improving decisions. The results obtained made substantial improvements or added efficiency in all field of organizations by playing an important role in today’s business and society. However, while it is true that technology has been responsible for the loss of many jobs especially in the manufacturing and services industries, it is also visible that a wealth of new type of employment opportunities have arisen in their places.

 

The development of information technology and the information society for consumers has brought several consequences. The new technological environment has been greeted with enthusiasm by many, citing the improvement in consumers choice, convenience and general accessibility of information but there have also been calls to focus on the needs of consumers protection legislation around the world in response to the technical advantages. Increasingly, the world is becoming a global community market where hardware and software are developed, manufactured, bought and sold internationally. Ensuring compatibility, safety and compliance with each country’s or state’s regulations has become a formidable task. Issues such as product liability, intellectual property, electronic e-commerce and right of accessing information increasingly analyzed and discussedby worldwide experts.

 

2.                   INFORMATION SYSTEM

 

To better enter into specific topics, object of this thesis, I think it is important to provide some general preliminary information with the aim to explain concepts that, although utilized frequently, are often misunderstood or are not properly clarified.

 

The so called “computer” is a computerized information system which consists of a number of interrelated components that work with the aim to convert inputs into data and its most relevant components are the hardware and the software.

 

The typical structure of the computer foresees the presence of a processor, a memory and peripherical  units. The processor is the hearth of the elaborator and is forming the electrical component able to execute the received instruction (as by the way of sample, it can be compared with the motor of a car). The memory contains information that shall be processed by the processor and the data to work with by the processors.

 

The “hardware describes the physical, electronic and mechanical, components (or its invariable part) of computers, telecommunications and other information technology devices. As a collective word it includes not only the computer but also cables, connectors, power supply units and peripheral devices such as the keyboard, mouse, audio speakers and printers. The term arose as a way to distinguish the "box" and the electronic circuitry and components of a computer from the "program" you put in it to make it do things. However, the modular configurations of most computers in their hardware part can be changed by adding new adapters or card that extend the computer's capabilities. The hardware alone is not able to solve any problem and we can identify it as "a unit that resolves potential problems of different nature".

 

The hardware itself  is not able to provide any practical utility as for its use it needs to put in it programs. Between the instructions provided to the hardware, we have to distinguish the general basilar functions which relate to functions for any kind of application and placed in the permanent memory, from those operative intended for specifics needs of the user. Different programs allow the same hardware for different scope of works depending upon the programs inserted, for instance from keeping an accounting system for a company to controlling the air-traffic for an airport.

 

The term “software describes the abstract, variable part of computers, such as the various kinds of programs, which are used to operate these and their related devices. Therefore, the program is generally known as the “software” and, differently from the hardware, it can easily be varied. The type of task that a computer can perform depends from the specific software installed. The software can be divided into two main categories: software of base, which is made of all programs able to make operative the computer and therefore, to solve problems for their users; and the applicative software constituted by programs that solve specific problems for their users.

 

Based on the above consideration it results clear that without a software, the hardware would be of no effectiveness. 

 

3.                THE LEGAL STATUS OF COMPUTER

 

The problem related to the computer liability is quiterecent and connected to the incredible expansion and application of new informatics technologies in all sectors of social organization. The growth of the software industry and its autonomy with respect to the hardware industry, the large amount of investments in research & development sectors and the interests ofallconstituencies involved are all elements that justify the need of a legal identification and consequently, an adequate legal protection. The international doctrine and jurisprudence have started to studying the computer’s legal protection with the aim to classify it as juridical entity in order to provide a proper efficient and specific protection outside the general laws and regulations offered.

Historically, the purpose of “licensing” computer program copy use was to employ contract terms to augment trade secret protection in order to protect against unauthorized copying at any time when first, the existence of a copyright in computer programs was doubtful, and later when the extent to which copyright provided protection was uncertain. In Europe the EU Directive (91/250/EEC) has organized in the whole European Union a common regulation based upon copyright law for the protection of computer programs or software. The main reason for protecting computer programs by copyrights was initially the fact that computer programs (as such) were excluded from patentability in Europe by the European Patent Convention (EPC).  

 

As already clarified in the previous paragraph, while the hardwarerepresents the physical aspect of a computerand the other information technology devices, which implies permanence and invariability, the software, instead, represents the variables and is not a corporalpart of the computer as it is composed of all such information provided by theprogrammer to obtain a function or a practical results. However, whileit seems generally recognized that the “hardware” is identified as a tangible product and therefore,legally classified as a “good”, the legal status of “software” still remains open to various interpretationswhich vary from the theory of defining it as an intangible product (“immaterial”). It is therefore identified as a “service”, to the opposite conception of recognizing it as a tangible (“material”)  product and therefore classified as a “good”. A response to the question, still not answered definitely under the European law, on whether the software is a good or a service, is of extreme relevance for a determination of satisfactory forms of protection.

 

It is commonly known that the use of a piece of hardware or software usually comes with a licence agreement that states that the creator is not liable for any damages that may result from the use of his product. However, do the programmer, publisher, designers of software and hardware have the right to say that they are not at all responsible? If a product is found to be poor in quality and endangering for the user normal life would be held responsible in a court law its manufacturing company? The same would apply to computer products from which we depend upon more and more every day?

 

The ramifications of possible software and hardware applications are enormous, let think of their use in the medical field, for instance, where human lives are at stake or in financial markets where large sum of money are concerned and in educational institutions, where performance is measured. Consequently, we can easily imagine how many could be the practical examples of defective software applications, which may cause physical injury, loss of records, business, productivity and damages to all computer systems, etc.  For example, in the medical field it has been suggested that anesthesia provided by a sophisticate software to patients undergoing operations may result less expensive and more effective in monitoring all conditions of the patients than the traditional one. However, in the event of failure it could even cause the death of the patient and if so happen it is still not clear who should be considered liable: whether the anesthesiologist, the hospital or the software developers.  

 

 

3.1             THE LEGAL STATUS OF COMPUTER:  The  HARDWARE

                   

Under the legal point of view, the “hardware” is generallyconsidered by the doctrine and jurisprudence an (industrial) product and therefore, classified as a good” to which we can apply the general laws and regulations foreseen for goods. Moreover, if the technical innovations satisfy the requisites of patent, the hardware can be protected more efficiently by filing application for patent invention or as an industrial model.

 

Generally, the contracts which govern the hardware fall under two main categories:

 

a)                  Contract of sale; a contract between two parties, called respectively, the seller (or “vendor”) and the buyer (or “purchaser”) by which the former, in consideration of the payment or promise of payment of a certain price in money, transfers to the latter the title and the possession of the property; in this case the buyer become owner of the hardware part of the computer.

 

b)                  Contract for leasing: a contract by which one owning such property grants to other the right to possess, use and enjoy it for a specific period of time in exchange for periodic payment of a stipulated price.

 

It is interesting to note that under the European Laws the contract having as object the purchase of an hardware implies the obligation for the supplier to consign the computer to the client, which, under the general condition of contract, could be fully complied with the simple consignment at the level of the external road. In consequence of this, the obligation to provide also the assembling would be considered a different and separate contract as obligation of services. Moreover, the maintenance and assistance would be also considered under separate contracts. Under these circumstances, in case the buyer/client decides to claim back the paid amount for the mal functioning of the computer, a link between such different agreements should be found and proved. It is also worth to note that in the event of dispute, the coexistence of different and separate agreements would complicate any action brought by the buyer because directed against different subjects .

 

 

3.2               THE LEGAL STATUS OF COMPUTER: The  SOFTWARE

                   

In trying to give a current definition of “software” it could be said that the software, or program for elaborator, is the sum of all information or instructions that the programmer gives the elaborator in order to obtain a function or practical result.

 

Software can be produced and supplied either by the same manufacturing company of hardware or by different companies - called software-houses - that produce and supply exclusively software programs, and finally, by professional programmers.

 

The legal status of software is not yet univocally classified at International law level and the matter is far from being settled. Therefore, the codified laws that are usually searched to provide adequate protection to the software would be found mainly in the contractual codes under some specific clauses that regulate or limit their utilization by users, intellectual property rights area (invention, right of author) as well as unfair competition.

 

Software can be classified in three main categories:

 

A)            The “STANDARD SOFTWARE”, also called “OFF-THE-SHELF” package, (which represents the majority of software purchased by private consumers) where fixed intangible information and adoption of programs are recorded into physical disks called CD-ROOM and made immediately available to customers; and this type of software is identified as a good . In this category, identical copies will be supplied to users often via a substantial distribution chain and at a cost ranging from tens to thousands of pounds. There will seldom be any written agreement negotiated in advance between the parties with the producer attempting to introduce a set of terms and conditions through the device of a licence. We have to recall that the same version of software programs can be also downloaded through Internet without the physical support of a floppy disk and in the same way it seems that it would be equally identified as a good.

 

B)     The software “MADE TO MEASURE” or “BESPOKE” is a specific program, ideated and designed for clients in order to meet their detailed necessities; this type of software is identified as a service in consideration that the contract previews the work in the area of design; the cost of these may run into many millions of pounds, with the essential feature being that the supplier agrees to design and develop software to suit the needs of a particular customer or a comparatively small number of identified customers. The software will be supplied under the terms of a written agreement negotiated between the parties.

 

C)    Finally, the “CUSTOMIZED SOFTWARE” represents a category in between the other two above mentioned since its programs are characterized by a composition of standard applications directly selected by the customer and additional programs specially ideated by programmers in order to meet their necessities. This involves the supplier modifying existing software, developed either by themselves or a third party, to suit better the requirements of a particular customer. The degree of customization may vary from making very minor adjustments to a single package, to developing a unique system based on a combination of a number of existing packages. This type of software is considered as a service in consideration of the great amount of work provided by the creation of new special programs.  The classification conducted above is of relevance in case of software failure. The engineering design and manufacturing company can be found negligent if they have failed to use reasonable care either in manufacture or design of a software product placed into the market corrupted, especially if the company may lack in a proper quality system. In the normal course of applications customers purchasing the faulty software would realize such failure only when trying to install the program in the computer. The main argument in case of dispute shall be based on applied and available general software ordinary standardand work-processing program manufactured by other producers.

 

The above considerations are influencing the regime of the liability of the manufacture and/or supplier of a computer. In fact, in the event the software would fall under the classification of being considered a good, the obligation of the manufacturer/ supplier would be an obligation of results. Differently, if the type of software would be classified as a service the obligation of the manufacturer/ supplier will be considered as an obligation of services and therefore, a technical service suitable to realize some results based on the actual knowledge in the sector, where the realization of results will be juridical regarded as a matter of diligence and expertise. 

 

A claim for damages incurred for defective software is not specifically dealt with by software laws and therefore, it would be essential to clarify whether the software would be considered by law as a good or a service by keeping in mind that the product liability law is applied only to goods (and often found under the consumer protection measures). In this regard, in the UK, the Consumer Protection Act 1987states that a product will be considered defective if it does not provide the level of safety we are entitled to expect from an expert system. However, an adequate supporting documentation may cover all situations by explaining also that there is no always guarantee for correct information or functioning.

 

Another important element would be to ascertain if the claim will be considered and built under the laws and jurisdiction of a country of common law or civil law.

 

Common law jurisdictions, under the law of contract, apply the doctrine of privity of contract and it means that rights and remedies may normally be pursued only between the contracting parties. If a piece of software is purchased from a retailer, the contract would be with that party and any action will be pursued in that direction. The product will have been made by the manufacturing company but in the absence of a contract the buyer cannot bring actions directly against the producer. What may occur is a chain of contractual actions. If the claim filed by the buyer shall end  successfully against the retailer on the ground that the software is not of satisfactory quality than the retailer may claim against its supplier seeking reimbursement of the sums it has had to pay out to the buyer in compensation. That supplier will have to pay up but will then seek reimbursement from its supplier.

 

In the Civil Law jurisdiction, if in possess of a regular contract, the consumer who has bought a defective software from the retailer may, on presentation of a valid receipt, usually within a week time, ask for the refund of the money paid.  However, if the damages occurred are higher than the price of the software he may file a claim directly against the producer.

 

When a contract does not exist, the final user must seek protection, in the common law countries,  under the general tortuous liability law (which is more time consuming and expensive) under the principles of negligence, breach of warrantyand fault of the manufacturer or, in case of negligence certification, against independent software testing companies when inspecting, testing and approving defective software products.

 

However, in consideration that defective software may be used in a single computer as well as in a net of integrated computers, the failure of its program could cause damages ranging from a small amount to millions of pounds and these damages would be difficult to quantify and insure prior to the purchase and utilization of the software. As a result of this, the manufacturers and developers now tend to minimize their legal responsibility applying limited liability clauses in their licensing contracts with the end users or to exclude it entirelyas for instance in the contract of “shrink-wrap licence.

 

 

 

 

4.          SHRINK-WRAP LICENSE

 

When a software program fails and causes losses, the end user may sue the manufacturer for breach of contract, breach of warranty, or both on the grounds that the manufacturer delivered a program that did not perform as warranted or as expected by the user. Most software license agreements, however, provide warranties that are so limited as to be almost meaningless and typically limit liability to the amount paid for the program, excluding "consequential" damages, such as lost profits.

 

The most common legal agreement found in the information technology industry is a “standard form of agreement” which is called “shrink-wrap licence”. This type of licence is entirely drafted by the vendor without consultation or negotiation with the purchaser and grants the right to use the software program. This licence represents an attempt to limit or exclude the software developer liabilities if the software program should prove to be defective.

 

Today many license agreements for commercial software read as follows: This software is provided on an "As Is" basis without a warranty of any kind, including without limitation the warranties of merchantability, fitness for a particular purpose and non-infringement. The entire risk as to the quality and performance of the software is borne by you. Should the software proven to be defective, you and not the companies assume the entire cost of service and repair. Under no legal theory tort, or contract or otherwise will the company be liable to you or any other person for any indirect, special, incidental or consequential damages of any character including damages for loss of good will, work stoppage, computer failure or malfunction or any and all commercial damage loss. In no way will the company be liable for damages in excess of the list price for a license to the software even if the company will have been informed of such danger or for any claim by other parties.

 

It is curious to know that the shrink-wrap licence gets its name from the fact that retail software packages are usually covered in a plastic or cellophane “shrink-wrap” and as soon as the customers tear the wrapping from the package a written licence reported in the CD-ROOM disk is declared effective.  In this circumstance, we have to consider that the average purchaser eager to try his or her program, invariably tears off the cellophane to get inside the box containing the disk or CD-ROOM, without a second thought for the piece of paper between the box and the cellophane. This piece of paper is the shrink-wrap licence and carries a collection of small print on the side, headed by a statement similar to the following example “By opening this envelope you agree to the terms and conditions below. If you do not agree to this terms, return the disk in the unopened envelope to your supplier for a full refund”. The parties to a computer contract concern with the acceptance because it triggers the beginning of the warranty period and/or a payment to the vendor.

 

4.1     CONTROVERSY OVER THE SHRINK-WRAP LICENCE

 

The problem over shrink-wrap licence originates from the fact that a licence is a form of contract, which ordinarily would require having two parties reaching mutually agreeable terms. However, when purchaser pays and gets the CD-ROOM containing the software program he usually has no time to read this contract, neither to agree on mutual terms and to put its signature in the document. The absence of a written or verbal agreement is considered substituted by the action of wrapping the CD ROOM package.

 

A number of courts have been addressed with the enquiry over validity of the shrink-wrap licences, as its legal status is unclear. The enforceability of use of restrictions and transfer prohibition set forth in a standard form, non-negotiated, computer program copy ”licence” has been the subject of substantial academic and other controversy.  In the United States, for instance, a consistent number of courts have found them to be invalid, characterizing them as contracts of adhesion, unconscionable and/or unacceptable pursuant to the Uniform Commercial Code because there was no agreement formed between the parties. This position has been contrasted by few others US courts, starting by the federal district court in Wisconsin, that have ruled that the shrink-wrap licence is valid and enforceable and provided a clear guidance on circumstances under which a shrink-wrap agreement will be instead held invalid and unenforceable.

 

These judgments represent some of the most recent decisions in favor of shrink-wrap licence. However, it would be advisable that in order to address properly this much disputed question and having explored the legal significance of the missing second thought over the shrink-wrap licence we have primarily to identify all the relevant elements related to the information system.

 

As already clarified, shrink-wrap licences are essentially documents, which appear with commercial software and state that by opening the package or using the software buyer agrees to abide by their terms without any negotiation and without bearing the signature on the contract. There are different types of shrink-wrap licences: a “box-top” licence, which is visible beneath the wrapping on the box, an “envelope licence” instead is printed on the outside of a sealed envelope containing the licence and a “referral licence” has a sticker over the disk or CD-ROOM box. The vast majority of shrink-wrap licences are not available for inspection prior to purchase.

 

The software developer attempts to form a contract between software developer and end purchaser, with the purpose of excusing themselves from any liability should the software prove defectiveincluding restricting the use of the software to a selected number of licence’s users, restrictions on timesharing or selling time on the software to third parties, declaring governing jurisdiction, disclaiming legal warranties and limiting availability of monetary damages.

 

Generally there will be two main clauses : the first will relate to the Intellectual Property Rights protection and the second more controversial, as an attempt to limit the developer’s liability, will exclude entirely the manufacturer of software from liability for any loss or damage caused by defects in the software. The terms have been expanded to include the presentation of licensing agreements to software buyers and information users before the program will permit use of the product or information and if accepted, the customer cannot refuse the other limitation or exclusion clauses which can be extensive and difficult to quantify and thus to insure against.

 

 

 

 

4.2     "CLICK-WRAP"

 

A software manufacturer operates a traditional manufacture and sale of physical-medium delivery software to retail outlets type operation. However, the nature of the software industry must be more widely considered as now companies are commonly selling directly through the web. The "click-wrap" (or “web wrap licence”) is referred to software for on-line transaction in retail that requires users must affirmatively click on a mouse indicating their acceptance of the licensing agreement before they can install the software or view the information on-line. This type of licence is considered more readily enforceable at law rather than shrink-wrap licence since the website from which the software is being downloaded can log the time and date that the user accessed the site and read the terms and conditions. If a condition or essential term of a contract is breached then there may be a claim for damages losses incurred as well as the common law right to terminate the contract.  However, the parties must agree that there was a binding contract in place for this to be an issue. Recoverable damages may include a claim for money to put the customer in the same situation as if the contract had been performed including loss of bargain (expectation loss) and damage suffered and expenditure incurred in reliance of the contract (reliance loss).  If the term is a warranty only then a claim only arises for damages or for rectification of the problem.

 

Software companies use either the “shrink-wrap licence” or the “click-wrap” licence for two important reasons - to protect their copyrights and to limit their exposure to lawsuits by limiting the software company’s legal liability. The increasing number of standard form of agreements to govern the use of digital products is creating a growing number of conflicts between the prohibitions embedded in contracts and uses permitted by copyright law. In the event a software licence is provided on-line, some consideration should be made as the manufactures theoretically receive orders from anywhere, and often take measures to limit this, whether to avoid prosecution in respect of content which is legal in one jurisdiction but not in another, or to avoid competing against the company’s own branches in other countries. If a “click-wrap’ agreement does not specify which laws govern the agreement and in which jurisdiction the agreement is made, the supplier could be subject to the laws in its customer’s location that are very different to the laws in the supplier’s state or country. The concerned courts may use different factors-test to determinate whether they have jurisdiction over a dispute.

 

4.3          SHRINK-WRAP LICENCES UNDER U.S.

The legal status of software licences has been debated in few casesmostly of these based in the USA and Canada.

In the USA, the need for protection arises by the general laws governing contracts and the sale of goods, which in all states (except Louisiana) is the Uniform Commercial Code. The U.C.C. governs a variety of commercial and business transactions. In several decisions involved the sale of hardware and software under a single agreement, in majority of these decisions article 2 of the Uniform Commercial Code that deals with contract formation, performance, breach, repudiation and remedies, was applied to the transaction. Although the U.C.C. applies only to the sale of goods and consequently programming services are outside the U.C.C. rules, the courts tend to apply the U.C.C. to programming services when the services are connected with the sale of computer hardware.

The U.C.C. allows a programmer or developer to limit their liability for defective software through the elimination of liability for consequential or incidental damages, limitation of the other remedies that would otherwise be available to the license, as well as through a disclaimer of warranties. A limitation of remedies provision in a contract means that a licensee’s recourse is limited to a specific remedy such as repair or replacement of the software. The U.C.C. provide for express warranties of merchantability (unless the seller specifically excludes those), as stated by the manufacturer either in writing or orally, and implied warranties which arise by the nature of product for example an accounting program is expected to create a financial report.

The present status of shrink wrap licenses is unclear since U.S. Courts have both enforced and refused to enforce various provisions of such licenses.

In the case Triangle Underwriters it was addressed the threshold question of whether software was a good under article 2. The court, sitting in diversity concluded that a New York court would treat both the computer hardware and software as goods under article 2. The same question was also confronted in the Dreierwhere the court stated: “It is clear that the sale of a computer system consists not only of physical goods, but of substantial services essential in producing the final product. Nevertheless, most authorities agree that the sale of a computer system involving both hardware and software is a "sale of goods" notwithstanding the incidental service aspects of the sale; therefore Article 2 of the Uniform Commercial Code . . . applies.”

Under the USA law if software is considered as a “good” two set of principles must be considered, strictly liability in tort (product liability) and contract-related provisions of Art. 2 of the Uniform Commercial Code.  Therefore, if an expert system is considered a good product the principles of product liability would apply, however, product liability applies where there has been not injury to person or property as a purely economic damages generally cannot be recovered under the product liability action. Moreover, U.C.C. section 2-607(3)(a) states that where the tender of goods has been accepted the buyer is barred from any remedy for breach if the buyer fails to notify the seller of the breach within a reasonable time after buyer discovers or should have discovered the breach. Section 2-206(1)(b) of the Uniform Commercial Code states that” a buyer accepts goods when, after an opportunity to inspect, he fails to make an effective rejection”.

Recent changes to US Software licensing law strengths the rights of software owners regarding the licenses, which the purchaser of their products must abide by. The U.C.C. on its side seems to disclaim for the U.S. software industry all responsibility for the quality of products allowing a programmer or developer to potentially limit in the contract their liability for consequential or incidental damages. Unlike the manufacturing companies of cars, cookers, medical devices or anything else, software companies in America are in effect exempted from product-liability unfavorable laws. They evade responsibility for the quality and safety of their goods by stating in their licence agreements that they grant to use them, not to own them, with a long list of disclaimers if customers open the packet. The Uniform Computer Information Transaction Act (UCITA) , which provides that the shrink-wrap licence is enforceable by software owners as soon as it has been unwrapped or in case of on-line transaction the – “I accept” - button has been clicked irrespective that the user has read the terms. The UCITA is a long complex law projected, ideated for the scope of creating an uniform law governing a wide range of transactions and controlled by lobbyists for software publishers, that will govern all contracts for the development, sale, licensing, maintenance and support of computer software, plus most contracts for information in digital form. Vendors of other products that contain software such as computers, can also bring their products within the scope of  UCITA rather thanArt. 2 of the U.C.C..

A panel of experts at the National Academy of Sciences in Washington, DC, is proposing the introduction of a new legislation to end the software industry's special exemption from product-liability suits. In the area of product liability reform, IEEE-USA supports the following general principles:

  • A determination of liability should require proof that the product was both defective and that the defect was the proximate cause of harm.
  • Manufacturers should not be held liable for harm caused by a product that cannot be made entirely safe where the risk of using the product is known or should be known to product users.
  • Product manufacturers should be allowed to defend themselves by showing that any product in question was made in conformance with the state of the scientific and technical standards at the time, and that the manufacturer in question gave reasonable notice of safety considerations known at the time or manufacture or subsequently discovered.
  • Manufacturers liability should be limited if a product user alters or misuses a product resulting in a personal injury. "Alter" means changing a product in a manner inconsistent with the specifications. "Misuse" is the use of a product in an application or a manner other than the one for which the product was intended.
  • Product sellers (retailers and distributors) should not be held liable for harm caused by defects in the product unless they have control over the product's manufacture, its design, or the safety warnings that accompany it; or unless they otherwise fail to exercise reasonable care, make an express warranty, or engage in intentional wrong-doing.
  • A two-year statute of limitations should be adopted on product liability tort actions, beginning when the claimant discovers (or should reasonably have discovered) the defect and its cause.

American lawmakers seem bent on giving the software industry even more protection. The Uniform Computer Information Transactions Act, already enacted by Maryland and Virginia, allows software producers to escape liability for damages caused by defects that they knew existed when the software was shipped and to prevent customers from openly criticizing the product. Many believe this is going to have a chilling effect on innovation and competition within the software industry.

IEEE-USA recognizes the need to impose some terms and conditions on the sale or other transfers of computer software and other digital works. However, it is important that consumers understand such provisions and that there be nationwide uniformity in the law governing such non-negotiable terms and conditions. Vendors of computer software or other digital works subject to non-negotiable terms and conditions should not be permitted to disclaim all warranties except when the works are distributed at no cost to the recipient. In all other cases, vendors must at least warrant that the digital information may be read on any device appropriate for the media except to the extent clearly stated to the contrary. Unless the computer software or other digital works are being provided for no more than the media duplication and shipping and handling costs, vendors must also warrant that a product substantially conforms to its documentation and any other representations made by its developers and distributors. Remedies for these warranties must include, but may be notlimited to, the return of the product for a complete refund within a reasonable period of time. Incidental and consequential damages may be disclaimed only to the extent permitted by state law. To achieve those goals, IEEE-USA recommends that:

·         Congress exercise its authority to regulate national commerce to bring about uniformity for non-negotiable terms and conditions that accompany the sale or transfer of computer software and other digital works, much as it has established national rules for consumer warranties and for the protection of intellectual property by patents and copyrights.

·         The terms and conditions for a particular transaction should be available before the transaction occurs and must be available at any time after the transaction.

·         Before their actual use of computer programs or digital works, if purchasers or users are dissatisfied with the terms and conditions, they may return the computer software or digital works at the vendor's expense.

·         Only standardized terms and conditions should be permitted, to help consumers understand the limitations being imposed on them.

Congress should establish a mechanism for the review of suggested provisions to assure that they are not against public policy and are fully explained to the public, perhaps through administrative review with public comment by an agency such as the Federal Trade Commission. The burden should not be on an individual consumer to show that a provision is unconscionable, but on those proposing a provision to show that it is fair and reasonable.

IEEE-USA further believes that some non-negotiable terms and conditions should never be permitted, including provisions that:

·         Prevent the study and understanding of a computer program by legitimate means, including reverse engineering.

·         Prohibit commenting on a product, including the publication of benchmarks comparing the product to its competition.

·         Convert what would otherwise be a sale into a license and thereby affect established user rights in copyright.

·         Forbid the transfer of the computer software or digital work to somebody willing to abide with the original restrictions on the work.

·         Permit "self help" that purports to authorize the accessing of a user's computer to enforce the terms of a license, particularly when it is accompanied with a disclaimer of liability for any damage caused.

·         Require that a consumer bring any legal action in a forum inconvenient to that consumer.

 

4.4     SHRINK-WRAP  LICENCES  UNDER  UK  LAW

A software is not a physical or corporeal thing but the arrangements of magnetic particles on a diskette like the essence of a book is the typeface on the pages. On the other hand, software is more than information alone: it directly instructs the hardware and is the only means by which a computer can be made to operate. The precise legal nature of software has been the subject of much academic and judicial discussion.

 

In the UK legislation if for example, software is identified as a "good", its supply under a contract of sale will attract certain implied terms under the Sale of Goods Act 1979.  This could impose strict obligations upon the seller to ensure that the software is of satisfactory quality and fulfils its purpose. In the event that the software would be no so characterized, it might be argued that the seller needs to show no more than the use of reasonable care and skill.

 

In an earlier position held by the UK Court in the Saphena v. Allied Collection Agency case it was stated that a software product even if recognized as a product would not be considered simply as a commodity and therefore, eventual defects found in it should be naturally expected to be corrected through a lengthy and laborious process and any immediate legal action in this regard would be considered as premature. Therefore, it must be observed that the suitability of the software product for its intended use was considered as not fundamental.  

 

In the St Albans City and District Council v. International Computers Limited [Queen's Bench Division 1995] case, the decision of the Court of First Instance of English Court, where the software was considered as an informational good on the grounds that if a software enter into a medium, the medium itself is altered (in line with the United State jurisprudence orientation), was overturned in Appeal [1996 All ER 481] by English judge Sir Iain Glidewell. He awarded substantial damages in respect of a supply of defective software, which proved unsuitable for the customer's intended use(perhaps the most important attribute in this case is the assertion that software is a product and is to be assessed qualitatively on that basis).  In the St Albans case an error in the customized software designed to calculate a community charge caused the rate to be too low because the number of the persons for tax base was overstated. The Appeal’s decision focused the question on the legal status of a computer program and differentiated the computer programs and electronic information from the media where it is stored. Pragmatically the judge considered in a similar way a car maintenance manual with a defective software program inserted in a disk arguing that while computer disk would fall within the definition of “good” as per s. 61 of the Sale of Goods act 1979 as well as s. 18 of the Supply of Goods and Services Act 1982, a computer program would not. Therefore, the computer program being not a “good”, it would not breach the terms “ quality and fitness of goods ” as per art. 14 of Sale of Goods Act 1979, which provides implied terms of satisfactory quality.  However, in consideration of the  absence in the contract of any express term of quality and fitness or any term in the contrary, the Common law that would apply to solve the case and therefore, it was considered that that terms would be considered as implied since the program should have been considered fit i.e. reasonably capable of achieving the intended use.

 

In the U.K., another singular case that deserves to be mentioned is the BETA v. ADOBE held in Scotland at the end of 1995. Prior to such case, the shrink-wrap licences were thought to be unenforceable and although the judgment of that decision was based on a particular factual situation, the overall approach may be considered of wider interest. The Scottish Court of Session ruled otherwisein respect to the English law position since it was held that the contract for supply was concluded only when the shrink-wrap terms had been seen and accepted by the purchaser. Therefore, if the purchaser buys software without using it and without unwrapping the envelope he may still return the software for a refund. The basilar points considered in the case were the facts whether it is legally justifiable to hold the purchaser to licence terms which only come to his attention after the apparent point of sale and second whether the software company can rely on its licence in a contract between two other parties. The judge, Sir Lord Penrose found that there was no consensus in idem between Beta and Adobe and recognized the validity of shrink-wrap licences per se on the basis of jus quaesitum tertio. This concept is not considered under the English law which rules, under the doctrine of privity, that contracts are binding only on those parties.

 

However, while the issue is not settled in all jurisdictions, the recent trend in the law has been to consider such shrink-wrap licences agreements enforceable and binding, provided that the user has the opportunity to return the product for a full refund in the event that he does not desire to be bound by the terms of the agreement.  The contract of sale drawn up in respect of a software package will define the legitimate rights and expectations of contracting parties in respect of a breach. Any such contract will, of course, be subject to various legal provisions at international, European and national level. However, it would be essential identify the applicable laws, starting by distinguishing whether the software was purchased for business or personal use; as well its delivery mode, such as physical or online and finally if the software is classifiable as good or service.

 

4.5     SHRINK-WRAP  LICENCES  UNDER  E.U.  LAW

 

As a result of these increasingly sophisticated market driven demands, it is very important for software developers to ensure that customers are kept satisfied, while at the same time ensuring the maximum value of software products. Extreme care is also usually taken in drafting the software licence so as to exclude, to the permissible extent, implied statutory warranties and, in the case of warranties, which cannot be excluded, to limit their application and liability. The application of implied statutory warranties to the above matters has been the subject of much debate as the value placed on software by a business may far exceed the cost to the business of that software and naturally software developers will wish to minimize their liability related to consequential loss, loss of profit and direct loss.

 

In formulating the terms of the software licence a range of issues require consideration in this respect as traditionally developers will seek to impose a series of restrictions on the use of software by the licencee, including by the way of example: restriction to particular hardware and/or operating system combination; restriction to a specified number of users; a restriction to a particular location; a restrictions on copying, adapting, decomposing and testing. However, the EU Directive on the Legal Protection of Computer Programs affected the developer's freedom to impose some restrictions in a software licence.

 

Article 12 of the Products Liability Directivespecifically precludes any such attempt to evade or limit liability: "The liability of the producer arising from this Directive may not, in relation to the injured person, be limited or excluded by a provision limiting his liability or exempting him from liability." Therefore, under the European law the shrink-wrap licence will be carefully considered and if the terms herein contained would be found not in compliance with the articles of the Directive, they will be considered null and void. It must be noted in this regard that the European position is in clear contrast with the recent orientation in favor of shrink-wrap licence held in the United States as and sustaining its computer industry. 

 

Software is an instrument and people rely upon tools to do their work. It should be noted that sometimes software will fail at a greater rate than more tangible products and most people will accept that. However, there is no reason why software should not be subject to  the same laws that products are subject to.

 

In the U.K., the Copyright Act 1988 states that computer software programs are protected by copyrights and generally it holds that the owner of the copyright is the author of the programs with same exceptions including those cases in which the work has been created in the course of a person’s employment under a contract of service, in which case the employer would be considered to be the first owner of the copyrights. The Copyright (Computer Programs) Regulations1992 gave domestic effect to the EC Directive where the prime objective was to guarantee copyright protection to the developers of computer programs.  Under the Regulations a licencee has the right: to make back-up copies of software (so long as they are necessary for the licenced purpose); observe, study or test the functioning of a software program to determine the ideas and principles which undermine any element of the program; and decompose i.e. reproduce the code and translation of its form for the purpose of constructing a link or interface with another program, unless an alternative is available. In doing so, the Regulations attempt to provide a balance between affording such protection while ensuring that program users have certain minimum rights in relation to the use of the program. While these rights cannot be excluded by contract (and any attempt to do so will be void), they can be limited and, to a certain extent, circumvented by express terms in the software licence. Basically, it would be not considered an infringement of copyright for a lawful user of a copy of a computer program to copy or adapt it, providing that the copying or adapting is necessary for his lawful use; and is not prohibited under any term or condition of an agreement regarding circumstances under which his use is lawful.

 

5.       CONTRACTUAL  LIABILITY &  INTERNATIONAL LAW

 

When someone buys a computer we can say that he is most probably buying an hardware and a software and therefore, he is legally entering into separate but linked agreements. In fact only with the completion of the various phases involved in the functioning of a computer the supplier can say to have given a functioning computer, since without software the hardware no utility. 

 

International contracts for software are becoming more common since it is now possible for a potential buyer to buy on-line a software product in a different country from where he is located and paying for it by credit card and receiving on-line delivery. Therefore, new issues should be considered in of dispute between the parties as for instance the law of which country should be applied? Where and when the contract is to be considered concluded? If the general rule is that the contracting parties have the right to choose the law governing the contract by inserting a specific jurisdiction clause, the problem arises when the contract does not foresee a pre-selected jurisdiction or the jurisdiction although selected is invalid. In this event, the option available would be to apply the rules contained in a relevant international convention or those of private international law to identify the appropriate national law that should govern the contract.

 

Should the contract deal with a standard software, classified as “good”, then the relevant convention “United Nation Convention on Contracts for the International Sale of Goods (Vienna) 1980”, which is including all EU countries with the exception of the UK, would apply. This convention applies to contracts made in course of business and excludes contracts for private consumers in the situation when the contracting parties’ place of business are in different states and both states are signatories to the convention. Defective standard falling under this convention may seek remedies such as the right to repair or replace in order to meet the qualitative standard or in certain circumstances ask for damages inclusive of loss of profit and consequential losses.

 

As mentioned earlier, when in case of contracts between software developer o retailers and private consumers there is no applicable international convention then the rule of private international law would apply. In this case the two most followed sources of law would be the Hague International Sales Convention 1955 where in lack of express indication the appropriate jurisdiction would be conventionally fixed at the seller’s place of habitual residence at that time.  It is worth to mention that the Hague Convention found its sources in the Roma Convention 1980 and in the International Sale of Goods (Vienna) 1980 convention.

 

Another convention of international level which regulates international contracts for the sale of software is the Lugano Convention of 1988 . The Lugano Convention, in the event of dispute for breach of contract by delivery of a defective software and the appointment of liability, rules decides that both parties have the freedom to choose up to two jurisdiction of laws provided that at least one of the parties must be domiciled in a state signatory of the Lugano Convention or where neither parties is domiciled in a signatory state but the contract reports a specific clause referring jurisdiction to the courts of a signatory a state member. Art. 14 of the Lugano Convention states that if no jurisdiction clause has been incorporated in the contract of sale on installment credit terms or for financing such sales, the consumer may sue the person with whom he has contracted for the purchase of the software proved to be defective either in the courts of the Contracting State of the consumer’s domicile or in the courts of the contracting State where the consumer is domiciled.

 

6.       LEGAL  LIABILITIES &  COMPUTER

 

 

The issue of legal liability related to defective software products is assuming considerable importance as the software is being increasingly used in all aspects of our life. As  the software applications become more critical and our lives depend on these, the public demand  for quality software products increases, especially for defect-free products or at least seeking full protection against any possible defect. Software fails due to various factors and it is these failures that software liability stems directly from. There are three classes of problems; erroneous input data (from sensor, humans or stored files), faulty code or a combination of the two.

 

Although no many claims related to defective software programs are brought to the attention of Courts worldwide, it is quite remarkable that most of these claims were related to customized software and not to standard software packages. The difficulty in this area of disputes is in the identification of the nature of computer software, i.e.  whether the supply of software would be considered as a "good" or as a "service". The distinction between the purchase of off-the-shelf products and bespoke software, as already clarified, is that the first will be considered as a contract of sale of goods, while the second as a contract for services.

Software and hardware developers almost always have checks, tests, and quality assurance departments in place to make sure that their products are not defective, and perform as claimed. So how does it happen that defective software is released? Estimates of the economic costs of faulty software only in the US range in the tens of billions of dollars per year and have been predictable to represent approximately just under 1 percent of the nation's gross domesticproduction. There are a number of factors that can be shown to contribute to this increasingly relevant problem.

7.       SOFTWARE’S  QUALITY AND  FAIR  USE

Software’s quality is measured according to its suitability for the works or the problems it is intended to facilitate or solve: whether it can meet the customers’ business requirements and if it can perform with certain reliability. The quality of software is depending basically on two factors: the number of errors (or bugs) and the suitability for its intended use. While the number of errors is quite easy to be verified, the suitability purpose is much more difficult to quantify since it is dependant on a number of elements. However, we can say that the basic technical criteria for such analysis include correct functions, speed and easiness of use. If the buyer purchases particular corrupted software copies, the likelihood is that they will not work at all so that any defect becomes apparent before any damage is caused. However, more often, the realization that the product has defects, appears on later stages. The commonly yield view of the currently state of software quality is described as it is impossible to prove that all defects have been removed from a software products with the availability of defect –free software products which have been developed by the high technology manufacturing companies.

The shrink-wrap licence usually foreseenthe process of notification of bugs and problems to the software producer and the extent to which these shall be replaced or repaired. The problem arises if the bugs cannot be repaired and for this reason the producer needs to protect himself from problems that cannot be fixed.

Another problem plaguing the industry is the lack of standards. Many professional products have standards associated with them, either legally imposed or assumed. On the contrary hardware and software so far have not been subject to standards, may be because of  the variety of products and services offered, but only those voluntary accepted by the developers, and usually those standards that are adopted are for easy of use or compatibility, not for quality assurance or reliability. The first tool for assuring quality presently is testing. The testing is recognized as an expensive and ineffective way to eliminate defects from any products including software. Moreover, it is impossible to test a piece of software for every piece of use since in some complex cases it would be necessary an indefinite amount of time for the myriad of possibilities of interaction (whether desired or not) between the various elements of the program. Therefore, it has been suggested that the testing could be conducted only up to a “reasonable” level. Usually, the producers company of computers do not guarantee that their products are defects free but they provide warranty and support services to minimize their customers’ damages and inconvenience. The software industry tends to disclaim all responsibility of their products. However, by recognizing the standards to which the programmers and developers should be held it can better consider understand the level of care which may be required from them.

 

If a party is trying to ascertain that a software product fails to comply with relevant quality requirements, the task is almost invariably simpler where defects arise in production phase. In most cases the plaintiff will seek to establish that the purchased product is of inferior quality compared with other examples of identical product. Where, instead, the plaintiff ‘s complaint would be based on the poor quality of performance, it may be difficult to identify an appropriate basis for comparison.

In the UK, Common Law jurisdiction, inthe absence of any express term in the contract as to quality or fitness for purpose or of any term to the contrary, the solution must be found in the terms implied by the Sale of Goods Act 1979 (as amended in 1994) where it is implied that that the program will be reasonably fit for the expected use, i.e. reasonably capable of achieving the intended purpose. Software then must, in the absence of any express contractual provisions to the contrary, be reasonably fit for its intended purpose. However, what does 'fit' mean in the software context is described in Section 14 The Sale of Goods Act provides that :

For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.

(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods-

(a)  fitness for all the purposes for which goods of the  kind in question are commonly supplied,

(b)  appearance and finish,

(c)  freedom from minor defects,

(d)  safety, and

(e) durability.

The software environment, as for example the co-existence with other programs and sharing of sources, should be also considered an additional element of quality assessment.

 

Section 27 of the UK Copyright Act 1988 deals with the question of fair dealing in the specific context of computer programs. The Copyright Act was specifically amended in 1988 to provide a new definition of fair dealing as that concept applies to computer software. The provisions of the Act, which apply to computer software programs, define computer programs as "a set of instructions or statements, expressed, fixed, embodied, or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result." It is clear from the Act that computer software programs are protected by copyright and the full range of remedies set out in that statute is available to the copyright owner. The first part of the Act was divided into two parts. The first is defining the ability to adapt the program to the precise machinery on which it is being used.

 

“ the lawful owner by purchasing of a program may adapt, modify or convert the program into another computer language if (1) the reproduction is essential for the compatibility of the program with a particular computing device; (2) the reproduction is solely for person’s own use; and (3) the reproduction is destroyed forthwith when the person ceases to be the owner of the copy of the program”.

 

The second part is dealing with provisions that allow the owner to make a single reproduction of the program or the adapted program for back-up purposes only. Similarly, the 1996 WIPO Treaty amending the Berne Convention confirms that copyright does subsist in computer programs.

 

8.       DAMAGES  &  LEGAL LIABILITY

Numerous are the world examples where companies or individuals by using software in consequence of its failure have suffered either losses, personal injury or damages to some other items of property. Software cannot be guaranteed error free and therefore it can cause loss or damage.

Since the pre negotiation phases of the IT hardware and software contracts, the extreme articulation of the contractual relation generates reciprocal obligations to be reflected upon the executive phase of the contractual performance. Obligations and correlated responsibility should be assessed for the evaluation of potential damages. The interest for the subject originates from the individuation of new damage figures, which even though they can be brought back to the typical damage figure as enucleated in the European civil discipline, they differentiate themselves for further peculiarities.

 

The responsibility for presence of vices or defects in the IT products implies an obligation to the compensation of the damage, based on the civil principles. But of which type of damage? The so called IT damage refers to  damage caused by software mistakes or by the malfunctioning of the IT system and it can be distinguished between direct and indirect damage. The first one stands out when there is a physical damage to the IT system, for example a fire to the computer. It is a damage to the material good ( property manage) whose evaluation is compared to the value of the damaged good. The indirect IT damage is a damage consequent to the miss functioning or the bad utilization of the IT system that is defined as the damage to the organization. It is an economical damage of difficult evaluation (economic loss), as well as a composed damage, because it is made of loss (for example loss of contracts) and by costs for the prosecution of the activities, such as, for example, the cost for the extra work.

 

According to the Italian jurisprudence, the so called indirect damage or mediate one, is compensated in obedience to the principle of the causal regularity, as normal effect of the non fulfillment of an obligation.  It is of significant relevance, in this regard, the issuance of judgment of Tribunal of Rovereto in Italy which, further to the resolution of a contract for the study and the development of a software, considered applicable the compensation for damages consisting in the unproductive expenses for the maintenance of the unutilized machine and in the payment of the leasing fees of this one in the measure of fifty per centwithout consideringcompensation for the damages due to delay in the company organization of the customer for the missed resolution of problems of electronic elaboration data.

 

Differing from the European jurisprudential tradition, the common law countries jurisprudence is providing interesting case law experiences. For instance in the Beasley case the decision was about the introduction of a clause in which the hardware provider made himself exempted from any responsibility for the damage suffered by the client restricting himself to change the pieces which were in that case spoilt; the malfunctioning of the machine, at any case, had caused remarkable damages to the client. The Court, in deciding on the occurred controversy, recognized to Beasley a damage consisting in the price of the machine, in the cost of the services given to the client, in the reimbursement of the interests of a debt contracted to buy the computer and compensation of the expenses born to fix the accounting situation on the calculator. It was considered unusual the Chatlos case, in which the Court denied to create a new figure of tort (so called computer malpractice) and to apply the rules of an objective responsibility .

The EEC Product Liability Directive dated 25th of July 1985, n.374 creates an objective responsibility which is chargeable to the producer for damages coming from the product, extending such responsibility also to the supplier which has distributed the product in the practice of a commercial activity.

The Directive is not applied to software considered as a “service” or as an “immaterial good” but only as a “product”. Damage caused by death or personal injury and Property damage may be the subject of a claim under the Directive. The purpose of this Directive is to ensure consumer protection against damage caused to health or property by a defective product and to reduce the disparities between national laws.

Directive 1999/34/EC amended 85/374/EEC by redefining "product" in its Art.2 as all movables even if incorporated into another movable or into an immovable."Product" includes electricity as well. The Member States were directed to apply the rules of the new Directive as of December 4, 2000.

The relation of causality between the caused damage and the action or the omission of the party compels to the compensation.The injured person has three years to seek compensation. This period begins on the date the plaintiff becomes aware or should reasonably have become aware of the damage, the defect, and the identity of the producer. The producer's liability expires at the end of ten years from the date on which the producer placed the product on the market. The producer may not limit his liability, nor is the producer exempted from it, regardless of what contractual arrangements have been made with the injured party. Such legal instrument is offering to the consumer the advantage in term of proof since it is the producer that would be in the position to prove evidence that there is not causality between the process of fabrication and the denounced malfunction. Liability, or the responsibility to pay for damages, is placed on the producer.

Art. 3 of the Directive defines the producer not only as the manufacturer of a finished product, but also as:

  • The maker of any raw material or the manufacturer of a component part;
  • Any person who, by putting his/her name, trademark or other distinguishing feature on the product, presents himself/herself as the producer;
  • Any person supplying a product if the producer cannot be identified;
  • Importers placing products on the European Union market

Under the Product Liability Directive, the injured party is required to prove the damage, the defect in the product, and the causal relationship between the two.

Several are the types of legal liability. Liability is defined, in a legal sense, as "almost any obligation, responsibility or duty that might arise from a cause in a statute, contract or tort”, therefore liability may be contractual or non-contractual.

8.1       THE  CONTRACTUAL  LIABILITY

The liability under contract arise from a legally binding agreement between the parties and terms and condition forming a contract can foresee some legal restraints. Where a contract exists, the purchaser whose software is defective is entitled to sue the party with whom (s)he has entered into the contract for breach of contract, breach of warranty or both on the grounds that the manufacturer delivered a program that did not perform as warranted or as expected by the user. However, most of software license agreements provide the above mentioned shrink-wrap licenses in order to limit such liability to the paid up amount for the program excluding the consequential damages such as the loss of profits. However, the buyer of a defective software is more interested in the recovery of indirect damages rather then direct damages. In fact, in the event of direct damages, the software can be easily substituted. However, in case of indirect damages, the malfunctioning can create consistent unforeseen damages for example costs to bear in the recovery of lost data, loss of unsatisfied customers or compensation for the lost time of own employees never functioning on programs.

Where the contract is with a retailer in respect of packaged software, it will generally be replaced upon presentation of a valid receipt and satisfying the seller that it is indeed unfit for the purpose for which it has been purchased. Where more serious (consequential) losses have been suffered, the ‘victim’ is in a better position if (s)he has a contract with the software developer responsible for the defect, otherwise an action in torts, potentially more time consuming and thus more expensive than an action in contract, must be pursued in order to seek legal remedy. The contract of sale drawn up in respect of a software package will define the legitimate rights and expectations of contracting parties in respect of a breach.

Any such contract will, of course, be subject to various legal provisions at international, national level. In order to identify the applicable laws, some distinctions must first be made, such as: is the software being purchased for business or personal use? What is the mode of delivery – physical or online? It is of extreme importance to evaluate if the software program will be classified as a good or as a service in order to apply the satisfactory form of protection.

8.2     NON-CONTRACTUAL  LABILITY

Injury or damage may be caused to persons who have no contractual relationship with the software producer. In such situations software failure creates potential liabilities and software manufactures become an obvious target for legal action. Any action against the producer will require to be brought on a non-contractual basis. In most cases this requires that the claimant establish that loss was due to the negligence of the defendant.

The question on what level of conduct will reasonably be required from a software developer will be considered as will the issue whether it might be considered negligent for a user to rely (or not to rely) on software aids.

Ordinary negligence applies in case of not-contractual liability when a software developer does not use the degree of care that a reasonably prudent person would have used when developing a software.

Negligence consists of four basic "elements:"

  • the existence of a "duty of care"
  • a breach of that duty;
  • damages caused by the breach; and
  • evidence that the injuries suffered by the plaintiffs were reasonably foreseeable .

In court cases where negligence is concerned, it is either proven that the developer of a product exercised his "duty of care" causing loss or damages in the manufacture and sale of said product. For example, a reasonably prudent driver does not drive with red lights; to do so is a breach of the duty of care. A consulting firm that uses flawed software to forecast market trends may be liable for negligently causing a client to spend millions developing a new product that has no market, if using that particular program is found to constitute a breach of the duty of care. If that breach results in damages (such as a collision), a claim for negligence exists. If it can be determined that there is something a software developer should have done, and would reasonably have been expected from him by all others involved in the use and distribution of the software, then he can be found guilty of negligence, and required to pay damages to the plaintiff. Negligence theories may be advanced against those who rely on software to discharge non-contractual or professional obligations. Nevertheless, it can be quite difficult to prove that software failed due to a breach of the duty of care because the mere fact that the software failed does not mean that its manufacturer breached the duty of care. This is the reason why an end uses typically limits its claims to the breach of contract.

Malpractice is a failure to employ the higher standard of care that a member of a profession should employ. It has not been determined whether malpractice can always be applied to computer cases. This is simply because it has not been unequivocally concluded if computer professionals are, in fact, professionals although computer professionals posses some of the appropriate characteristics. However, some computer professionals possess little autonomy, and there is no legally recognized professional organization. In some cases the courts have "declined to invent such a tort (i.e. wrong) on the basis that simply because an activity is more technically complex and important does not mean the greater potential liability must be attached". However, there are examples of cases in which a verdict was issued in favor of the plaintiff suing under "computer malpractice," when it was determined that a consulting firm did not "act reasonably in light of its superior knowledge and expertise in the area of computer systems". We see the beginning of a trend here: information and decisions regarding computer liability cases are confusing and often in conflict.

In addition to the traditional system of negligence based liability, systems of no-fault liability are emerging. Generally referred to under the heading ‘product liability’ these seek to impose liability upon the producer for certain forms of damage arising through its use unless the producer can establish that the damage was not caused by a defect in the product. The type of liability is called strict liability. Essentially, strict liability provides that a producer of a goods will be liable in the case of a defect to its product if the victim can prove damages and a causal relationship between the defect and the suffered damages. "Manufacturers and sellers of defective products are held strictly liable, (that is, liable without fault) in tort (that is, independent of duties imposed by contract) for physical harms to person or property caused by [a] defect" . The application of this system to software has been the cause of some controversy since it is not clear whether software, or information generated  as a consequence of its operation, can be regarded as a product.This type of responsibility has been clearly stated in CEE Directive 85/374 where it is introduced the objective liability on the manufacturer for defects borne by its products irrespective of fault or malice. In fact, under certain situations, a party other than an end user could sue a software manufacturer for a defective program. These cases, however, are generally limited to situations involving personal injury and not merely economical losses. For example, if an air traffic control system fails due to a software defect, people injured in a collision could sue the software manufacturer for damages under a negligence theory. Strict liability is usually only applied in extreme cases, where a product defect is obvious. In general, strict liability cannot be applied carelessly, since holding some manufacturers liable in all cases will cause the consumer to behave ineffectively.

It is interesting to note that as example in the Aetna case in the U.S.A. if the courts are willing to apply strict liability for defective charts they may consider as well the same for defective software or for those that represent a complete reliance and regarded as mass produced with exclusion of all software products destined for professional use.

Since the problems with software are often not clear or entirely understood by members of the legal system, rarely is strict liability used in computer-related cases. One of the reasonable suggestions that have been made to the industry was to cease the publication of software incompatible with never operating systems and that fixing bugs should take priority over adding new features and better customer support, since that can often prevent the losses that would be associated with a liability case.

Fraud  or misrepresentation. If the end user is a consumer and the software agreement is provided with limitation clauses that by jurisdiction would be in most instances enforceable he may choose to sue the software manufacturer for common law fraud or for violation of the anti-fraud provisions of certain consumer protection laws. Fraud actions, however, require evidence that the defendant made a false statement about a material fact, intending that the recipient rely on the statement and that the recipient did rely on the statement to his or her detriment. If the manufacturer knew that the program would not perform as described but misrepresented that fact to the end user, who acquired the software based on the statement, the manufacturer could be liable for resulting damages under a fraud or misrepresentation theory. A successful fraud claim, moreover, may subject the defendant to punitive damages. While difficult to prove, injured parties may resort to these cases when recovery for breach of contract is unlikely.

9.       CONCLUSIONS

The use of computer systems has increased significantly during the last decade and hardware and software liability are not new issues in our society and law. We cannot avoid to purchase, develop, deploy or otherwise rely on software programsas they have become part of our modern life in the Information Age.

The application of existing laws to these products and services is still not completely clear and the process of enacting new adequate directives and regulations is still not yet finalized as in continue evolution following the rapid development of the computer itself. Moreover, the fact that different theories in doctrine and jurisprudence are not uniform by giving different prospects and solutions for their application is not helping the matter. Therefore, the interest of software’s consumers would be the awareness and assessment of the extension of legal liability in advance. The students and regular users of computer software programs should be trained with a minimum of software technical practices as well. On the other side, software providers can avoid most of legal actions brought against them if they would be willing to invest more time and investments in improving software quality or rely in legal protections.The solution would be in developing new high software standards making clear that quality is normal responsibility of the supplier of software products and services. Governments on their side should also provide assistance to their citizens by monitoring mass software products, providing warranty periods of consistent length, imposing licences to professionals, developing code of conduct and ethics, issuing proper liability law in order to protect the consumers and producers rights and introducing a proper behavior on the part of both the consumer and the producer. It is essential to identify the applicable laws, starting by distinguishing whether the software is purchased for business or personal use; as well its delivery mode, such as physical or online and finally if the software is classifiable as goods or services. The contract of sale drawn up in respect of a software package will define the legitimate rights and expectations of contracting parties in respect of a breach subject to various legal provisions at international and national level. However, while the different interpretations are given by the doctrine and the jurisprudence in the attempt to bring software within the confines of the general law, the enactment of a specific uniform legislation to protect mass software consumers, valid for all major economic countries areas, should be reached in the aim to solve this growing problem. 

  

REPORTS AND OFFICIAL DOCUMENTS

 

§  European Copyright Directive (2001/29/EC) http://europa.eu.int/information_society/topics/multi/digital_rights/documents/index_en.htm

§  Directive 1999/34/EC amended 85/374/EEC

       http://ts.nist.gov/ts/htdocs/210/gsig/eu-guides/gcr-824/text-of-directive.htm#art2

§  Green Paper on European Union Consumer Protection

COM (2001) 531, October 2001

             http://europa.eu.int/eur-lex/en/com/gpr/2001/com2001_0531en01.pdf

§  Unfair Terms in Consumer Contracts Regulations 1994 http://www.butterworths.co.uk/academic/lloyd/Statutes/unfair.htm

§  Council Directive Of 14 May 1991 On The Legal Protection Of Computer Programs (91/250/Eec) implemented in the UK by the Copyright (Computer Programs) Regulations 1992 http://itlaw.law.strath.ac.uk/readingqxq/intprop/91_250.html

§  1996 WIPO Treaty

§  Copyright (Computer Software) Amendment Act (1985)

§  Copyright, Designs and Patents Act (1988)

§  Unfair Terms in Consumer Contracts Regulations 1994

http://www.butterworths.co.uk/academic/Lloyd/statutes/unfair.html

§  EU Directive on the Liability for Defective Software - Council Directive of May 14 1991 on the legal protection of computer programs (91/250/EEC) http://itlaw.law.strath.ac.uk/ENLIST/subjects/liability/commentary/eu.html

§  Council Directive 93/13/EEC of 5 April 1993 On Unfair Terms in Consumer Contract

§  Uniform Computer Information Transactions Act (UCITA)

             http://www.law.upenn.edu/bll/ulc/ucita/ucita200.htm

§  Report of the Ad Hoc Committee on Fair Use of Software, University Computing advisory group, 1990.  http://www.ualberta.ca/~univhall/vp/vprea/ResearchPolicies/repol73.htm

§  United Nations Convention on Contracts for the International Sale of Goods (Vienna) 1980

§  The Richmond Journal of Law and Technology, vol.VI, Issue 2, fall 1999. By Philip J. Landau. http://www.richmond.edu/joilt/v6i2/note4.html

§  See also Directive 1999/44/EC on Certain Aspects of the Sale of Consumer Goods and Associated 

§  Copyright, Designs and Patents Act 1988 as amended.

              http://www.intellectual-property.gov.uk/std/resources/copyright/law.htm

               European Standards Information   http://ts.nist.gov/ts/htdocs/210/gsig/europe.htm   

 

 

ARTICLES & BOOKS & OTHER MATERIALS

A Lemon Law for Software? If Microsoft made cars instead of computer programs, product-liability suits might by now have driven it out of business.  Should software makers be made more accountable for damage caused by faulty programs ? 

Economist Staff, The EconomistMarch 15, 2002http://www.cfo.com/article/1,5309,6858,00.html?f=related

 

Judge Calls AOL Litigation Terms Unfair. San Francisco Chronicle. By Henry K. Lee, Chronicle Staff Writer. September 28, 2000.

      http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2000/09/28/BU80948.DTL

 

Article 2B and Consumers. (Kaner, Annual Meeting of NCCUSL, July, 1998).

http://www.badsoftware.com/nccusl98.htm

 

Why You Should Oppose UCITA, (Computer Lawyer, 2000) http://www.badsoftware.com/claw2000.htm

 

Bad Software: Who is Liable. (Kaner, Invited / keynote addresses to Quality Assurance Institute and to American Society for Quality, May / June 1998). In-depth background and analysis of quality-related effects of Article 2B. http://www.badsoftware.com/uccindex.htm 

 

Software Patents after Fujitsu. Lloyd I., New Directions or (another) Missed Opportunity?', Case Note  1997 (2)  The Journal of Information, Law and Technology (JILT). Case Note published on 30 June1997.  http://elj.warwick.ac.uk/jilt/cases/97_2fuji/

 

Understanding the Status of 'Shrink Wrap' Licenses. http://www.lawplusplus.com/column28.htm

 

In Softman Products  http://www.haledorr.com/pdf/softman.pdf

Court Strikes Down Shrink-Wrap License Agreement.

By  Eric S. Freibrun, Esq. 1996http://www.cl.ais.net/lawmsf/articl22.htm

 

Business Information Systems,Technology Development and Management; By Paul Bocij, Dave Chaffey, Andrew Greasley, Simon Hickie, pag. 697.

 

Information System for BusinessHussain , K. and Hussain, D. (1995), Prentice Hall, Hemel  Hempstead Chapter 4 and 5.

 

Is the 'shrinkwrap' licence worth the paper envelope it's printed on?

By Germanowski G. - International Journal of Law and Information Technology,1998, vol. 6, no. 3, pp. 313-326(14) Oxford University Press

 

Potential theories of Legal Liability for   Defective Expert System software.

By Rober D. Sprague and Leslie G. Berkowitz http://berkowitzfirm.com/expertsystemsliability.htm  

Liability for defective software in the European Union. 

Software –Goods or Service- pag 1/4. http://itlaw.law.strath.ac.uk/ENLIST/subjects/liability/commentary/eu.html

 

Product Liability for Software in Europe. A Discussion of the EC Directive of 25 July 1985"in Vandenberghe GPV (ed.) [1989] By Sturman C. "Advanced Topics of Law and Information Technology, Kluwer, Deventer, pp127-147.

 

Software Engineering Code Of Ethics And Professional Practice (1999). http://www.computer.org/tab/seprof/code.htm

 

Software Liability (1997). http://www.kaner.com/theories.htm

 

How software may fail? Note Theme 1. Software, Information and Legal Environmental.

 

Potential Theories of Legal Liability for Defective Expert System Software R D Sprague and L G Berkowitz, http://www.lawinfo.com/forum/ExpertsystemsLiability.html.

 

Comments On Software Quality by Watts S. Humphrey, Fellow, Software Engineering Institute Carnegie Mellon University, PA. 2Bguide-NCCUSL meeting.

 

Software Quality; Analysis and Guidelines for Success. Jones, C. (1996)

 

Liability for Bad Software and Support. A paper presented to the Software Support Professionals Association Executive Briefing, San Diego, October 3, 1996 and to the Software Support Conference East, March 12, 1997 by Cem Kaner. http://www.badsoftware.com/support1.htm

 

A test of Shrink-wrap licensing 1999. http://lwn.net/2000/features/ncm-dvd.phtml

 

Discussion paper on Digital Copyrights issues. By Copyright Forum 2001. http://www.museums.ca/copyright2001/copyright2001pg2.htm

 

Click! It"s an Enforceable Contract. By Lisa R. Lifshitz Smith Lyons Bulletin (February 2000)  http://www.smithlyons.ca/practiceareas/InformationTechnology/Publications/Enforceable_Contract.h tm

 

Media & Communications – Information Technology Law- 1. Computer contracts a) Software Licences http://www.cr-law.co.uk/it2a.html 

 

“Double” licenses - Enforceability of shrink-wrap and click-wrap licenses. YaleLibrary 2001. http://www.library.yale.edu/~llicense/listArchives/9901/msg00041.html/

 

Will The Shrink-Wrap Licence Dilemma Plague On-Line Sales? Legal Bytes. Spring 1995, Volume   3, Number 1 By George, Donaldson & Ford Attorneys at Law.                         

 

Liability for Bad Software and Support. Uniform Commercial Code Rejection Rules. By Cem Kaner 1997.http://www.badsoftware.com/chapter1.htm.

 

'The Validity of Shrink-Wrap Licences in Scots Law Beta Computers (Europe) Ltd v. Adobe Systems (Europe) Ltd', Case Note, 1998 (2) Robertson S J A, The Journal of Information, Law and Technology (JILT). http://elj.warwick.ac.uk/jilt/cases/98_2rob/robertsn.htm

 

Legal Issues of Shrink Wrap Licences - Ian Lloyd 1996. http://europa.eu.int/ISPO/legal/en/tourtabl/lloyd.html

 

Liability for Defects in Bespoke Software: Are Lawyers and Information Scientists Soeaking the Same Language? By Louise Longdin. International Journal of Law and Information Technology Vol. 8 No.1 pag.18.

 

Caveat Vendor? A review of the Court of Appeal  Decision in St. Albans City and District Council v International Computer Limited. 1997(3) http://elj.warwikc.ac.uk/jilt/cases/97_3stal/stalban.htm

 

Trends In Software Licensing and Legal Protection for Software 1998 by Fred M. Greguras.  http://www.batnet.com/oikoumene/softwr_licnsetrnds98.html#distribute  

 

Bad Software: What To Do When Software Fails. Cem Kaner & David Pels. Chapter 1. (1997).

 

Potential Theories of Legal Liability for Defective Expert System Software.Dr. Robert D. Sprague and Leslie G. Berkowiz. http://www.berkowitzfirm.com/expertsystemsliability.htm

 

Warnings and Human Behavior : Implications for the Design of Product Warnings Alan L. Dorris & Jerry Purswell, , 1J.PROD. LIAB.225, 225 (1977).

 

Software Negligence and Testing Coverage. By Cem Kaner. http://www.kaner.com/coverage.htm

 

'Browse Wrap' Licence? Don't Mind if I do" by Philip Rees

Oct/Nov issue : Society for Computers and Law http://www.scl.org/

 

Software Quality Management Magazine

http://www.srmmagazine.com/issues/2003-01

 

Federal Tort And Product Liability Reform(Approved by  the IEEE-USA Board of Directors, 12 Feb. 2003). http://www.ieeeusa.org/forum/POSITIONS/liability.html 

 

Non-Negotiable Terms and Conditions in the Sale or Transfer of Computer Software and Other Digital Work (Approved by  the IEEE-USA Board of Directors, 12 Feb. 2003). http://www.ieeeusa.org/forum/POSITIONS/index.html 

 

List of additional articles also consulted and contained at

http://www.badsoftware.com/outsourc.htm

http://www.library.yale.edu/~llicense/ListArchives/9901/msg00041.html

http://www.butterworths.co.uk/academic/Lloyd/Cases/WORD/Thornton.doc

http://itlaw.law.strath.ac.uk/ENLIST/subjects/liability/commentary/

http://www.kaner.com/theories.htm

http://itlaw.law.strath.ac.uk/readingqxq/liability/step.html

 

Software Engegneering Institute 2002

http://www.sei.cmu.ed

CASES

 

Winter v Putnam

http://itlaw.law.strath.ac.uk/readingqxq/liability/winter.html

Cardozo v. True. http://itlaw.law.strath.ac.uk/readingqxq/liability/cardozo.html

 

Thornton v. Shoe Lane Parking http://www.butterworths.co.uk/academic/Lloyd/Cases/WORD/Thornton.doc  

Stepsaver v The Software Link http://itlaw.law.strath.ac.uk/readingqxq/liability/step.html

 

Vault Corporation v Quaid Software Limited http://itlaw.law.strath.ac.uk/readingqxq/liability/vault.htm  

North American Systemshops v King

http://itlaw.law.strath.ac.uk/readingqxq/liability/northame.html

 

Beta v. Adobe

http://itlaw.law.strath.ac.uk/readingqxq/liability/beta.doc

http://www.cix.co.uk/~brethertons/corpfile/articles

 

St Albans v. ICL

http://www.butterworths.co.uk/academic/Lloyd/casesindex.htm

http://www.butterworths.co.uk/academic/lloyd/cases/albans.htm

 

Rudder v. Microsoft Corp

http://www.smithlyons.ca/practiceareas/InformationTechnology/Publications/Enforceable_Contract.htm 

 

Company, LLC v. Adobe Systems Inc.

http://hdnet.haleanddorr.com/hdnet/

 

ProCD v. Zeindenberg                

http://www.library.yale.edu/~llicense/ListArchives/9901/msg00041.html

 

Brower v. Gateway 2000, Inc.

http://www.law.emory.edu/7circuit/jan97/96-3294.html

 

CompuServe v. Patterson

http://www.law.emory.edu/6circuit/july96/96a0228p.06.html

 

Saphena Computing Ltd v Allied Collection Agencies Ltd
Court of Appeal (Civil Division) HEARING-DATES: 3 May 1989 http://itlaw.law.strath.ac.uk/readingqxq/liability/saphena.htm

St Albans City and District Council v International Computers Ltd [1996] 4 All ER http://www.lawcampus.butterworths.com/student/Lev3/weblinked_books/lloyd/dataitem.asp?ID=12451&tid=7

 

Salvage Association v CAP Financial Services Limited (Transcript: 9 July 1993) http://www.lawcampus.butterworths.com/student/Lev3/weblinked_books/lloyd/dataitem.asp?ID=12450&tid=7

 

Saloomey v Jeppesen,

http://itlaw.law.strath.ac.uk/readingqxq/liability/saloom.html

 

Brocklesby v. Jeppesen

http://itlaw.law.strath.ac.uk/readingqxq/liability/brock.htm

 

Aetna v Jeppesen

http://itlaw.law.strath.ac.uk/readingqxq/liability/aetna.htm

 

§  USA - Judge rules AOL click wrap agreement unenforceable          

§  Steven J. Caspi, et al. v. The Microsoft Network, L.L.C., et al., 1999 WL 462175, 323 N.J. Super. 118 (N.J. App. Div., July 2, 1999).

§  Groff v. America Online, Inc., File No. C.A. No. PC 97-0331, 1998 W L 307001 (R.I. Superior Ct., May 27, 1998)  

§  Register.com, Inc. v. Verio, Inc., (S.D.N.Y. December 12, 2000) (Jones, J.)

§  Specht v. Netscape Communications Corp., 2001 WL 755396 (S.D.N.Y., July 5, 2001).

§  Ticketmaster Corp., et al. v. Tickets.com, Inc., 1095502 (W.D. Wash., Dec. 1,1999).

http://www.sfgate.com/cgibin/article.cgi?file=/chronicle/archive/2000/09/28/BU80948.DTL



  Regulation of Information Technology in the Europian Union - By Terry R. Broderick, Nov. 2000, 104 pp.., hardbound.

  New Media Theory - Introduction to : Social Theory and Communication Technology - Ashgate, 2001. Http://www.media.uio.no/personer/terjer/1_socialtheoryintro.htm

   In 1998, the Financial Times reported that the annual expenditure would have reached soon  the amount of $2000/- billion to build information system worldwide.

    John Browning – The Economist of 16 June 1990.

   Lloyd I,“Software Patents After Fujitsu”. New Directions or (another) Missed Opportunity?', Case Note  1997 (2) The Journal of Information, Law and Technology (JILT). Case Note published on 30 June 1997. “Software design has developed from a restricted craft activity to a major global industry whereby the turnover and profits of software companies such as Microsoft may easily dwarf those of giant industrial enterprises”. http://elj.warwick.ac.uk/jilt/cases/97_2fuji/

    Input: Activity of capturing and gathering raw data.

  The act of Processing involves converting or transforming data into useful outputs. It can involve making calculations, comparisons and taking alternative actions and storing data for future uses. Manual or with the assistance of computers.

   Output: involves producing useful information, usually in the form of documents, reports and transaction data.

9    See Council of Europe to discuss Cyber Crime Treaty. Pail Muller, Bruxelles - http://www.coe.int/; U.S. Chamber. Press Release dated 8 December 2000.

    U.S. Department of Justice, basic of Internet fraud.

    Parker, D.B. (1976) Crime by Computer, Charles Scribner’s Sons, New York.

    R.J.Robertson, Jr., Electronic Commerce on the internet and the Statute of Frauds, 49S.C.L.  Rev. 813  (1998).

    Vic Sussman, “ Cops Want More power to Fight Cybercriminals”. U.S. News and World Report, January  23, 1995.

   Consumer Law in the Information Society – edited by Thomas Wilhelmsson, Salla Tuominen, Heli Tuomola. December 2000, 428pp.

  Under the Copyright (Computer Software) Amendment Act (1985) copyright subsists in computer programs. Unauthorised reproduction and also storage of a program are infringements of copyright, The Copyright, Designs and Patents Act (1988) continues this line - s 17(2) includes storing the work in any medium by electronic means and by s 17(6) copying includes the making of copies which are transient or are incidental to some other use of the work. The 1996 WIPO Treaty amending the Berne Convention makes it clear that copyright does subsist in computer programs.

     During the 7th International Consumer Law conference held in Helsinki in 1999.

    Hardware consists of any machinery (most of which utilizes digital circuitry) that assists in the performance of the input, processing and out put activities of any information system.

   Paul Bocij, Dave Chaffey, Andrew Greasley, Simon Hickie, Business Information Systems, Technology Development and   Management; pag. 697.

    A clear description of hardware components with diagrams and pictures.  Http://www.pcmech.com/

    Hussain  K. and Hussain, D. (1995) Information System for Business, Prentice Hall, Hemel Hempstead. Chapter 4 and 5.

    This site is a glossary giving succinct definitions of terms relating to software.

       http://whatis.techtarget.com/  

     The programs that control the operation of the computer. The Principles of Computer Hardware.

       Pag.1.Alan Clements- II Editions-Oxford science Publications 1991.

    http://europa.eu.int/comm/internal_market/en/intprop/news/fordh2001.pdf

    Potential theories of Legal Liability for Defective Expert System software. By Robert D. & Leslie G. Berkowitz. http://berkowitzfirm.com/expertsystemsliability.htm

    Liability for defective software in the European Union. Software: Goods or Service. page 1/4. http://itlaw.law.strath.ac.uk/ENLIST/subjects/liability/commentary/eu.html

    Hardware and Software Liability, Computer Ethics, By Tim Tompkins 6 December 2000.   http://www.cs.rpi.edu/courses/fall00/ethics/papers/tompkt.html

    A paper presented to the Software Support Professionals Association Executive Briefing, San Diego, October 3, 1996 and to the Software Support Conference East, March 12, 1997 by Cem Kaner. http://www.badsoftware.com/support1.htm Liability for Bad Software and Support.

    “A proposal for open-source anesthesia software heightens the drama of the question; Who’s at fault when software fails? by Andrew Leonard. Http://www.salon.com/tech/feature/1999/08/05/anesthesia/index.html     

   Another, but interesting different orientation of doctrine which is worth to mention, consider the hardware an invention and therefore, as an immaterial good, governed for its inventor by the intellectual property rights since any innovation in its technology that satisfied the requisites for obtaining a patent right is protected through the deposit of request of patent or industrial model. The utilization and application of such invention in industry generates a large scale of models, each of these regarded in law as a material good as any other type of machine or instrument.  In fact, we are used to buy or to lease the hardware part of the computer.

    The general law governing the sale of goods is the Uniform Commercial Code (Art.2 - 106).

    Undercofter v. Whiteway Neon Ad., Inc., 114 Ga.App. 644, 142 S.E.2d 616, 618.

   Francesco Galgano - Diritto Commerciale e Civile - I contratti per l’utilizzazione dei Computers. pag. 193.

  A typical solution package may well involve the following: -

1.      Software Licence

2.      Distribution Licence

3.      Maintenance and Support Agreement

4.      Umbrella and turnkey contracts

5.      Outsourcing Arrangements

6.      Service Level Agreements

7.      Source Code Deposit Agreement

8.      Consultancy Agreement

[35]   Stuurman C. "Product Liability for Software in Europe. A Discussion of the EC Directive of 25 July 1985".

 Vandenberghe GPV (ed.) [1989] Advanced Topics of Law and Information Technology, Kluwer, Deventer, pp127-147.

  http://www.computer.org/tab/seprof/code.htm Software Engineering Code of Ethics and Professional Practice  (1999). In accordance with their commitment to the health, safety and welfare of the public, software engineers shall adhere to Eight Principles herein described.

   http://www.richmond.edu/joilt/v6i2/note4.html  The Richmond Journal of Law and Technology, vol.VI, Issue 2,  fall 1999.Philip J. Landau.

    http://www.kaner.com/theories.htm Software Liability (1997). See also Legal Issues and Software  Quality. Kaner,  Jeynote  address to annual meeting of the Software Division of the American Society for  Quality, October 1997).

  For example, a computer programmer who represented himself as possessing skill and qualification  necessary to design and develop a computer program for an oil company implied represented possession  of the skill and diligence ordinarily possessed be well-informed members of the computer programming trade and breached an implied promise of having reasonable skill and ability when he failed to design the computer program needed. Data Processing Services Inc. v. LH. Smith Oil Corp., 492 N.E.2d 314, 320 (Inc. Ct. App. 1986) USA.

  How software may fail? Note Theme 1. Software, Information and Legal Environmental.

  Uniform Commercial Code (U.C.C.) See also comment of Adv. Bruno Secchi regarding the protection of consumers at   http://www.diritto.it/articoli/civile/secchi.html

  Consumer Protection Act 1987 (1987 c 43) http://www.lawcampus.butterworths.com/student/Lev3/weblinked_books/lloyd/dataitem.asp?ID=12622&tid=7

    In Italy as per Dr. Leg. 22 May 1999 n.185, in reception of Directive 97/7/CE. In case of long distance contract for goods and services to protect customers when buying and opening  defective software sealed products the prescription time for refund would be 10 days while in absence of warranty 3 months from the date of finalizing the contract.  http://www.tariffe.it/club/normative.htm

    Cem Kaner & David Pels. Bad Software: What To Do When Software Fails. Chapter 1. (1997).

    http://www.berkowitzfirm.com/expertsystemsliability.htm Potential Theories of Legal Liability for Defective Expert System Software. Dr. Robert D. Sprague and Leslie G. Berkowiz.

     Alan L. Dorris & Jerry Purswell, Warnings and Human Behavior: Implications for the Design of Product Warnings, 1J.PROD. LIAB.225, 225 (1977).

     http://www.kaner.com/coverage.htm   Software Negligence and Testing Coverage. By Cem Kaner.

    http://elj.warwikc.ac.uk/jilt/cases/97_3stal/stalban.htm Caveat Vendor? A review of the Court of Appeal   Decision in St. Albans City and District Council v International Computer Limited.1997(3)

  A case in the Scottish Court of Session has determined that shrink-wrap licenses can be enforceable. http://www.cix.co.uk/~brethertons/corpfile/articles 

    Trends In Software Licensing And Legal Protection For Software 1998. by Fred M. Greguras. http://www.batnet.com/oikoumene/softwr_licnsetrnds98.hmle                    

   http://www.ualberta.ca/~univhall/vp/vprea/ResearchPolicies/repol73.htm Report of the Ad Hoc Committee on Fair Use of Software, University Computing advisory group, 1990.

    http://www.cix.co.uk/~/brethertons/corporp... case defines shrink-wrap  licences.htm

    http://www.lawplusplus.com/column28.htm Understanding the Status of 'Shrink Wrap'  Licenses.

    http://itlaw.law.strath.ac.uk/readingqxq/liability/step.html

       See cases Step-Saver v The Software Link ; Vault Corporation v Quaid Software Ltd.; http://itlaw.law.strath.ac.uk/readingqxq/liability/vault.htm

    In Softman Products <http://www.haledorr.com/pdf/softman.pdf> Company, LLC v. Adobe Systems Inc. <http://hdnet.haleanddorr.com/hdnet/>, a Federal District Court in California held that when a software vendor transfers a copy of its software, that transfer should be viewed as a sale of goods rather than a license of intellectual property.

    http://www.cl.ais.net/lawmsf/articl22.htm  Court Strikes Down Shrink-Wrap License Agreement.    By  Eric  S. Freibrun, Esq. 1996. See ProCD v. Zeindenberg, This case has ruled in favor of shrink-wrap license as not violative of the contract formation sections of the UCC and also it ruled that the copyright statutes did not pre-empt the particular shrink-wrap. See. Is the 'shrink-wrap' licence worth the paper envelope it's printed on? By Germanowski G. - International Journal of Law and Information Technology, 1998, vol. 6, no. 3, pp. 325 (14) Oxford University Press.   

     http://www.*fenwick.com/pub/Archives/online_software_licensing.htm

    http://www.butterworths.co.uk/academic/Lloyd/Cases/WORD/Thornton.doc

    http://lwn.net/2000/features/ncm-dvd.phtml A test of Shrink-wrap licensing 1999.

    http://www.museums.ca/copyright2001/copyright2001pg2.htm 

       Discussion paper on Digital Copyrights issues. By  Copyright Forum 2001.

    Lisa R. Lifshitz - Click! It’s an Enforceable Contract Smith Lyons Bulletin (Feb 2000)

      http://www.smithlyons.ca/practiceareas/InformationTechnology/Publications/Enforceable_Contract.htm

  http://www.cr-law.co.uk/it2a.html    Media & Communications – Information Technology Law- 1. Computer contracts a) Software Licences.

    Double” licenses Enforceability of shrink-wrap and click-wrap licenses. Yale Library 2001.  http://www.library.yale.edu/~llicense/listArchives/9901/msg00041.html/

    Will The Shrink-Wrap Licence Dilemma Plague On-Line Sales? Legal Bytes. Spring 1995, Volume  3, Number 1 By George, Donaldson & Ford Attorneys at Law.                         

     http://www.kaner.com/theories.htm

    Best practice in mass market software licensing; by Steve White 1998. http://computerlaw.com/bullet.html

     http://itlaw.law.strath.ac.uk/readingqxq/liability/vault.htm

     http://itlaw.law.strath.ac.uk/readingqxq/liability/step.html

    http://www.badsoftware.com/chapter1.htm. Liability for Bad Software and Support.Uniform        

      Commercial Code Rejection Rules. By  Cem Kaner 1997.

   Understanding the Staus of “Shink Wrap Licenses” 1997. http;//www.lawplusplus.com/column28.htm

   In Triangle Underwriters, Inc. v. Honeywell, Inc., the sale of a computer system consisting of hardware, standard software, and custom software resulted in breach of contract claims when the system failed to function properly because the software did not operate as promised. The court concluded that the transaction involved the sale of goods under article 2.

   Dreier Co., Inc. v. Unitronix Corp. No. A-1593, 85T5, Slip Op. (N.J. Super. Nov. 10, 1986). the plaintiff Dreier entered into a written contract for the purchase of a computer system consisting of both hardware and custom programmed software. The software allegedly never operated properly and Dreier brought an action for fraud and for breach of warranty under article 2 of the UCC. The trial court found the action time-barred by the statute of limitations and granted summary judgment for Unitronix. However, the appellate court reversed and remanded for a determination of when tender of delivery occurred because tender controls when the statute of limitations starts to run under section 2-725 of article 2. The court confronted the question of whether article 2 applied to the transaction and concluded that general agreement exists that the sale of a computer system comprising both hardware and software is a sale of goods under article 2. However, the court's discussion indicates that the court viewed the providing of custom software, as in this case, as simply being an incidental service aspect of the overall transaction.  http://www.law.suffolk.edu/arodau/articles/akron.htm#N_29_ 

   Strictly product liability when a product reaches the consumer in a defective condition, which is unreasonably dangerous. http://berkowitzfirm.com/expertsystemsliability.htm Potential theories of Legal Liability for Defective Expert System Software. By Rober D. Sprague and Leslie G. Berkowitz.

     U.C.C. is a set uniform provisions adopted by all the states (except Louisiana).

     U.C.I.T.A. Http://www.ucitaonline.com

   http://www.badsoftware.com/uccindex.htm   UCITA is a proposed law that will govern all contracts for the  development,sale, licensing, support and maintenance of computer software and for many other contracts involving information.

   This statement was developed last November 1998 by the State Government Activities Committee (SGAC) of the Institute of Electrical and Electronics Engineers - United States of America (IEEE-USA), and represents the considered judgment of a group of U.S. IEEE members. The IEEE-USA promotes the career and technology policy interests of the nearly 220,000 electrical, electronic, and computer engineers who are U.S. members of the IEEE.

   A Lemon Law for Software? If Microsoft made cars instead of computer programs, product-liability suits might by now have driven it out of business. Should software makers be made more accountable for damage caused by faulty programs ? Economist Staff, The Economist March 15, 2002 http://www.cfo.com/article/1,5309,6858,00.html?f=related 

   Non-Negotiable Terms and Conditions in the Sale or Transfer of Computer Software and Other Digital Work (Approved by  the IEEE-USA Board of Directors, 12 Feb. 2003).

 

    Saphena Computing Limited v. Allied Collection Agencies Limited [1995] FSR 616.

    http://petition.eurolinux.org/letter/compose_step1?LANG=en

   Liability of Bespoke Software; Are Lawyers and Information Scientists Speaking the Same Language? By Louise Longdin, pag.17.

    White A, 'Caveat Vendor? A review of the Court of Appeal decision in St Albans City and District

      Council v International Computers Limited', 1997 (3) The Journal of Information, Law and Technology (JILT) http://elj.warwick.ac.uk/jilt/cases/97_3stal/

    http://itlaw.law.strath.ac.uk/distlearn/modulesqxq/01notes2.html

    Computer Software Deficiency “Year 2000 Compliance” Potential liability under the English Law by Victor Lyon , Sue Prevezer, Steven Berry, Nathan Pillow, pag. 4/55.

    (2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality. (2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking into account any description of the goods, the   price (if relevant) and all other relevant circumstances. (2B) For the purposes of this Act, the quality of goods includes their state and condition and the   following (among other things) are in appropriate cases aspects of the quality of goods

        (a)  fitness for all the purposes for which goods of the kind in question are commonly supplied;

         (b)  appearance and finish;

         (c)  freedom from minor defects;

        (d)  safety; and durability.

   Robertson S J A, 'The Validity of Shrink-Wrap Licences in Scots Law Beta Computers (Europe) Ltd v. Adobe Systems (Europe) Ltd', Case Note, 1998 (2) The Journal of Information, Law and Technology (JILT).  http://elj.warwick.ac.uk/jilt/cases/98_2rob/robertsn.htm

     http://europa.eu.int/ISPO/legal/en/tourtabl/lloyd.html Legal Issues of Shrink Wrap Licence - Ian Lloyd 1996.

     http://www.cix.co.uk/~brethertons/corpfile/articles/IMPORTANT%20CASE.html

    Privity of contract means only parties to contract can sue.

     Liability for Defects in Bespoke Software: Are Lawyers and Information Scientists Soeaking the Same Language?

       By Louise Longdin. International Journal of Law and Information Technology Vol. 8 No.1 pag.18.

     Is the 'shrinkwrap' licence worth the paper envelope it's printed on?

       By Germanowski G. - International Journal of Law and Information Technology, 1998, vol. 6, no. 3,  pp.  313-326 (14) Oxford University Press.

    Council Directive of May 14 1991 On The Legal Protection Of Computer Programs (91/250/EEC)

    http://itlaw.law.strath.ac.uk/ENLIST/subjects/liability/commentary/eu.html

      ENLIST Project - Liability for Defective  Software - EU Commentary.

   Several amendments were made to the 1956 Act prior to the introduction of the current legislation Part 1 of the Copyright,  Designs and Patents Act 1988, which came into force on 1st August 1989. The 1988 Act provided another major overhaul and updating of copyright law but the process has continued since then with a number of amendments, many implementing various European Directives. It is an ongoing process. 

     http://itlaw.law.strath.ac.uk/readingqxq/intprop/91_250.html

    See also Directive 1999/44/EC on Certain Aspects of the Sale of Consumer Goods and Associated  Guarantees.

   Legal Issues of Shirnk Wrap Licence by Ian Lloyd. http://europa.eu.int/ISPO/legal/en/tourtabl/lloyd.html

 

   EEC Convention of Law Applicable to Contractual Obligation 1980 “ the Rome Convention”. This treaty is not open to not EU countries, however its content has been converted into law by other non member countries as for instance the Swiss law adopeted the convention provisions into the Private International Law Codification of 1987.

    Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

   Comments on Sofware Quality by Watts S. Humphrey Fellow, Software Engeneering Institute Canergy  Mellon  University Pittsburgh, PA

   R D Sprague and L G Berkowitz,” Potential Theories of Legal Liability for Defective Expert System Software”    http://www.lawinfo.com/forum/ExpertsystemsLiability.html.

  Stuurman C. "Product Liability for Software in Europe. A Discussion of the EC Directive of 25 July 1985"in Vandenberghe GPV (ed.) [1989] Advanced Topics of Law and Information Technology, Kluwer, Deventer, pp127-147.

  Research Triangle Institute," The Economic Impacts of Inadequate Infrastructure for Software Testing," NIST  Planning  Report 02-3, May 2002.

  The software environment, as for example the co-existence with other programs and sharing of sources, should be also considered an additional element of quality assessment. Comments On Software Quality by Watts S. Humphrey, Fellow, Software Engineering Institute Carnegie Mellon University, PA. 2Bguide-NCCUSL meeting.

   Software bugs are defects in a program, which are caused by human error during programming or earlier in the lifecycle.   See also Jones, C. (1996) Software Quality; Analysis and Guidelines for Success.

  http://www.intellectual-property.gov.uk/std/resources/copyright/law.htm The principal legislation on copyright can be found in the Copyright, Designs and Patents Act 1988 as amended. There is no official consolidation of this Act of Parliament; it has been amended on a number of occasions since it came into force on 1 August 1989.

   Report of the Ad hoc Committee on Fair Use of Sofftware, University Computing  Advisory group, 1990.

  Chatos System Inc. v. National Cash Register Corp. in m. C. Geminiani, “ Product liability and Software’, in Rutgers Computer and Technology journal’ 1981, pag. 180.

   In Italy D.P.R. 24 May 1988. n.224

  In the original Directive, primary agricultural products and game were excluded (Article 2). However, Directive 1999/34/EC extended the scope of Directive 85/374/EEC so that it now includes primary agricultural products (such as meat, cereals, fruit and vegetables) and game.

  If the system fails, who is liable? - By Richard Cardinali - Logistic Information Management, Volume 11, Number 4, 1998: 257-261.

  Responsibility for unreliable Software by Nancy J. Wahl. Ethics in Computer Age, Gatlinburg, TN: ACM, 1994: 175-177.

  Software Risk Management - Vol. 2, No. 1 - January 2002. Legal Perspectives Assessing Liability for Software Failure by Geoffrey T. Hervey, Esq.  http://www.srmmagazine.com/

 Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1; [1932] AC 562; House of Lords http://www.leeds.ac.uk/law/hamlyn/donoghue.htm By Scots and English law alike the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.

   Computer Etichs, by Deborah G. Jonson, pag. 42, Second Edition. Upper Saddle River, NJ: Prentice Hall: 1994.

    If the system fails, who is liable? - By Richard Cardinali - Logistic Information.

  Strict Liability is generally established when: 1) the product is defective; (2) the defect rendered the product  unreasonable dangerous (3) the product reached the consumer without substantial change in its conditions from the time it was made and sold; and (4) the defective  product was a producing cause of the plaintiff’s injuries. A product is unreasonably dangerous when its usefulness does not outweigh the magniture of the risk posed by its defect. Moorhead v. Mitsubishi Aircraft intern., 639 F. Supp. 385,392 (E.D.Tex.19860.

   How Liable are you for your software? IEEE software(july 1991) pag.94-95, 101 by George B. Trubow.

   Tort is derived from the Latin word tortus which meant wrong. In French and Italian, "tort" also means a "wrong". Tort refers to that body of the law in the countries of common laws which will allow an injured person to obtain compensation from the person who caused the injury.

   Liability for defective Electronic Information, by Pamela Samuelson. Communications of the ACM. January 1003: 21-26.

  Turner James.” Software users of the world, Unite!” Christian Science Monitor, 25 February 1999: 16

  Liability for Defects in Bespoke Software: Are Lawyers and Information Scientists Soeaking the Same Language?By Louise Longdin.International Journal of Law and Information Technology Vol. 8 No. 1pag.18.

 

 

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Article 15

Lei è fondatrice dello studio Molinari Legal Consultancy con sede a Dubai. Ci può illustrare la storia e le aree di attività dello studio?

La nascita dello studio Molinari Legal Consultancy a Dubai nel 1999 è maturata dopo una ricca esperienza di lavoro triennale presso uno dei più grandi studi legali arabi nell’area medio orientale. In quegli anni è stata sicuramente un’opportunità vincente l’aver ottenuto l’abilitazione di avviare uno studio legale a Dubai in un momento in cui gli Emirati Arabi Uniti non erano ancora diventati famosi come lo sono oggi. I primi anni non sono stati assolutamente facili ma l’impegno e la perseveranza hanno fatto sì che lentamente lo studio sia cresciuto ed ad oggi possiamo affermare di aver assistito oltre un migliaio aziende internazionali e imprenditori operanti nell’area ad aprire entità legali, formare joint ventures, seguire la contrattualistica commerciale, dispute commerciali, recuperi crediti, attività di assistenza in campo immobiliare, lavoro, costruzioni, bancario, assicurativo, sanitario, verifiche, etc. Un’esperienza diretta a 360 gradi veramente fondamentale. Questa intesa attività lavorativa ha fatto si che lo studio si sia saputo perfettamente integrare nell’ambiente lavorativo locale e abbia sviluppato contatti diretti con il tessuto economico e governativo locale. Di grande importanza è che il nostro team sia formato da validi professionisti tutti residenti permanentemente negli Emirati e quindi completamente dedicati ed efficienti nel seguire tutte le pratiche. Al contempo questa maturata esperienza lavorativa ci ha fatto conoscere molto approfonditamente la cultura islamica che influenza così profondamente l’organizzazione delle società islamiche.

Dal prossimo numero, la nostra rivista Family Office lancerà una rubrica fissa sul tema della Finanza Islamica, fenomeno in grande crescita. Come giudica le future prospettive di espansione del modello economico islamico in Occidente?

Di fatto le banche islamiche sono quelle che hanno registrato maggior successo negli Emirati e che hanno una crescita costante del 10-15% per anno. Inoltre, proprio per la loro rigorosa operatività, la crisi mondiale ha avuto un impatto molto marginale. Il modello economico islamico in Occidente attrarrà moltissima clientela islamica e non solo.  Di per se, la banca islamica ha le stesse finalità di una banca convenzionale ma nello svolgimento della sua attività applicherà rigorosamente i precetti e i dettami contenuti nella Shari’a o Fiqh al-Muamalat (regole islamiche nelle transazioni ). Questo sistema bancario si basa sulla proibizione del tasso di interesse e sulla condivisione del rischio nei rapporti tra banca, destinatario del finanziamento e risparmiatori. Le regole morali seguite da questo tipo di banche e quindi maggior saggezza da parte dei suoi operatori danno una sensazione maggior sicurezza e confidenza ai risparmiatori perché invitati a condividere i rischi con la banca stessa. A mia risultanza ad oggi sono registrate circa 265 banche o istituti finanziari islamici nel mondo con presenze di 8000 filiali e un giro d’affari di oltre 230 billioni di dollari in Asia, Africa, Europa e USA. Di recente si è assistito al fenomeno dove importanti cariche in tali banche siano oggi rivestite da esperti banchieri provenienti dal paesi occidentali. Quindi si deduce che c’è la volontà di rendere questo tipo do banche più vicine al mondo occidentale.

Quali sono, a suo parere, le potenzialità e i limiti della Finanza Islamica?

Un numero sempre maggiore di banche convenzionali sta dimostrando interesse nel modo di operare delle banche islamiche pensando di predisporre sezioni di operatività islamica e quindi questo creerà un fattore di competizione non solo tra le stesse banche islamiche ma tra le banche islamiche e non. Il movimento di migrazione e crescita di popolazioni islamiche nel mondo non è da sottovalutare perché naturalmente queste saranno la primaria fonte di clientela per le banche. Inoltre in genere le banche islamiche sono rinomate per una alta percezione di soddisfazione della clientela anche in riferimento ai servizi e alla tipologia dei vari prodotti offerti. Un limite potrebbe essere quello che il suo tipo di operatività non soddisfa o supporta le attività di avvio necessario di giovani imprenditori e per il fatto che siano in genere abbastanza conservative.

La Finanza Islamica si basa su principi etico religiosi che trovano fondamento nella Sharia. Essa può proporsi come possibile modello etico per l’Occidente? Cosa ne pensa?

Credo che il mondo sia sempre più globalizzato e quindi nel futuro dovremo essere aperti a confrontarci con altri modelli di finanza islamici e non che ci vengono proposti per studiarne i contenuti e risultati. Alla fine è sempre business.

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Article 16

ZONE FRANCHE DI LIBERO SCAMBIO

La costituzione di un’entita’  commerciale in una delle varie Zone di Libero Scambio o Zone Franche degli Emirati arabi Uniti può rappresentare un’opzione interessante per gli investitori stranieri.

I principali vantaggi che ne derivano sono i seguenti:

  • 100% di controllo straniero dell’azienda
  • 100% di esenzione fiscale per importazioni ed esportazioni
  • 100% di rimpatrio di capitali e utili
  • Nessuna tassazione per le persone giuridiche per 15 anni, condizione che può essere prorogata per altri 15 anni.
  • Nessuna imposta sui redditi delle persone fisiche.
  • Assistenza nel reclutamento di manodopera e ulteriori servizi di supporto, come sponsorizzazione e alloggiamento.
  • Un’Autorità per le Zone Franche (FZA), indipendente, governa ciascuna zona franca ed è anche l’agenzia preposta al rilascio delle licenze operative ed all’assistenza nella costituzione di aziende in tali zone.
  • Gli investitori possono registrare una nuova società sotto forma di Free Zone Establishment (FZE, ovvero Impresa di Zona Franca) o semplicemente costituire una filiale o un ufficio di rappresentanza della società attuale o della casa madre, con sede negli EAU o all’estero. Una FZE è una società a responsabilità limitata soggetta alle norme ed ai regolamenti della Zona Franca nella quale sorge. Ad eccezione dell’acquisizione della nazionalità negli EAU, le disposizioni della Legge sulle Società Commerciali non si estendono alle FZE, a condizione che le zone franche adottino norme particolari di regolamentazione di tali aziende.

ZONE FRANCHE DI LIBERO SCAMBIO

 

(1) Jebel Ali Free Zone - JAFZA

(2) Dubai Airport Free Zone - DAFZA

(3) Dubai Internet City - DIC

(4) Dubai Media City - DMC

(5) Dubai Gold and Diamond Park

(6) Dubai Cars and Automotive Zone (DUCAMZ)

(7) Dubai Knowledge Village

(8) Dubai Multi Commodities Centre - DMCC

(9) Dubai Maritime City

(10) Dubai Aid City

(11) Techno Park

(12) Dubai Silicon Oasis

(13) Dubai Flower Centre

(14) Dubai Logistics City

(15) Dubai Outsource Zone

(16) Dubai Biotechnology and Research Park

(17) Dubai Studio City

(18) International Media Production Zone

(19) Dubai HealthCare City

(20) Dubai International Financial Centre – DIFC

(21) Dubai Textile City

(22) Dubai Carpet Free Zone

(23) Dubai Auto parts City

(24) Heavy Equipment and Trucks Zone

(25) Dubai Building Materials Zone

(26) Dubai World

 

Nuove Zone Franche:

 

(1) Dubai Design Centre

(2) Dubai Auto Zone

(3) Dubai Energy City

(4) Dubai Academic City

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Article 17

TEST

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