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No More Soft Landings for Software: Liability for Defects in an Industry That Has Come of Age

2005; Routledge; Volume: 21; Issue: 4 Linguagem: Inglês

0882-3383

Frances E. Zollers, Andrew McMullin, Sandra N. Hurd, Peter Shears,

Digital and Cyber Forensics

I. INTRODUCTION This is not a tale of robots gone wild or other stuff of science fiction. Rather, this is about real-life situations that have occurred or are likely to occur. It is about software failure when that failure leads, not to system crashes or botched tax returns, but to serious physical injury to persons. The power of software can be seen everywhere: It flies airplanes, monitors medical patients and nuclear power plants, and even helps us drive our cars. Indeed, software is no longer confined to the domain of business systems that control inventory, issue payroll checks, and keep track of accounts receivable and payable. It extends beyond the desktop computer with its word processing and data management capabilities and now routinely interfaces with human beings in their daily lives and in unseen ways. The consequence, however, is that some software can cause physical injury if it is defective. While many early commentators have speculated about the liability regime when such a condition occurs, (1) it is now time to take stock of how the law is developing and should develop when software foreseeably causes physical injury. The discussion is timely for a number of reasons. First, there have been sufficient numbers of instances of software failure that have caused physical injury (2) to cause serious concern, and the number can only grow, given the pervasiveness of software in our daily lives. Second, the software industry is no longer in its infancy. Its development has moved out of garages and into corporate offices. It has matured to become a dominant sector of the economy. Consequently, it is appropriate to consider liability for defective software in the same light as liability for defective automobiles, pharmaceuticals, and other products. This article will first examine the characteristics of software and its evolutionary creep into our lives in Part II. In Parts III and IV, we will review the literature about software litigation and the eras through which it has progressed. Part V reviews the origins of strict product liability and the policies underlying it to determine whether software, which has hitherto enjoyed immunity from strict liability, fits into the strict liability context. Lastly, in Part VI we argue for the adoption of a strict liability regime for software failure that produces physical injury and offer supporting arguments for why such a move is both necessary and sensible. II. COMPUTER HISTORY 101 While many think that computers, software, and computing are relatively new developments, this is not really the case. A timeline showing the major events in the history of the development of the computer should really start with Napier's bones in the 17th Century and include such developments as Pascal's adding machine, Jacquard's loom, and Herman Hollerith's tabulating code developed for the American census of 1890. (3) Although the history of computers and computing becomes clouded by the security surrounding both the Second World War and the Cold War that followed, two major developments in 1943 are generally regarded as the origination of the modern stored program electronic computer: J. Prosper Eckert and Dr. John W. Mauchly's (United States) ENIAC (4) design and the design at Bletchley Park (England) (5) of Colossus, the computer that would decode the German enigma messages. (6) Alan Turing, sometimes called the father of computer science, tied together these two developments, and it was he who considered the fundamentals of what is now called software fault tolerance. (7) Turing concluded that it was not possible to write a program that could determine if another program will compute successfully and halt. (8) In other words, the proof of correctness of any program is not computable, and software fault tolerance does not have a theoretical basis. Neither ENIAC nor Colossus were true programmable computers in the modern sense. …