Instead you can look at existing heavily regulated software markets to see what would happen: medical-device software, avionics software, car engine control units, cryptography before 01996, tax preparation software, PCI compliance measures. A vast wasteland of incompetence, waste, government graft, monopolies and duopolies, truly staggering profits, and easily avoidable deaths.
Consider: why aren't you wearing a Holter monitor? How about an automated electric defibrillator? Why isn't cryptographic security integrated into all the internet protocols?
How's that Bitcoin rollout going in El Salvador?
If I run over someone when driving a car, I'm responsible - not the car maker. If my customer's data is stolen, I'm responsible. Whether the makers of my software are responsible is a contractual matter - and nearly all open source licenses include a disclaimer of warranty and a limitation of liability, including the GPLv3 (see sections 15–17).
That was true in the US until MacPherson v. Buick in 01916 and in the UK until Donoghue v. Stevenson in 01932. Nearly all proprietary software licenses include the same disclaimer, but they are on slightly firmer ground in doing so, since typically those licenses are in fact contracts under common law, while the GPL explicitly purports not to be a contract and is very likely correct about that.
The kind of statutory imposition of liability we're discussing here would have to specifically outlaw such contract terms in order to work at all. You could imagine a statute that would specifically exempt open-source software licenses from that, but as explained comprehensively in this thread, such a statute would certainly not be the one that was passed.
ETA: the first couple of Google results say that no, product liability can't be disclaimed away - particularly when there is no contract or opportunity for bargaining. I am very much not a lawyer but this sounds correct to me (i.e. this is what the law is).
https://www.findlaw.com/injury/product-liability/are-product...
https://www.eltonlaw.com/does-a-disclaimer-mean-you-cannot-f...
> Though manufacturers cannot so easily escape liability, sellers can escape liability by informing the customer before the purchase that a product must be taken "as-is,” which means how the product was found when it was purchased in-store. “As-is” works because the buyer has an opportunity to inspect the product and decide whether to buy it given its condition.
On that analogy, Github and RedHat aren't liable, but the original author of the software still is.
Not if the rules are carefully targeted at SaaS and not at codebases. If the rules are targeted at SaaS, the liability is actually lower for open source because of the inherent transparency of everything open source code does.
There's also no liability associated with running a website. Simply refrain from collecting data of any kind and there should be no reason to worry.
The guy selling food on the street has the same liability as a restaurant.
Maybe you could make the case that he was following best industry practices in doing so; after all, using Valgrind is a best practice, right? But you could also pretty plausibly convince a jury that he was negligent. Especially if you're IBM's senior counsel. Or, say, RSA's.
Now, is Kurt Roeckx or RSA going to be advising the US legislators who draft this candidate legislation, establishing the standards that they both must uphold?
If someone gets run down by a bicycle that a hobby repair shop failed to fix, it doesn't matter it was done for free by a guy that learned to repair bicycles during late nights.
But yes, lawmakers will decide, and given that they for instance try to de facto prohibit aftermarket OpenWRT installs, I have a guess how they would decide.
The company selling me a car is responsible to validate the security of each piece they got from a third party, and a restaurant is responsible to take care for the quality of the food it buys from the local bazar.
When the wise must obey the commands of the foolish, disaster ensues.
The law makers cannot make the internet safer by one bit. Technical experts can and lawyers would dream to have leverage against them. They should be denied.
It is about minimizing risk and it is a process that acknowledges that risk cannot be removed completely. It just forces you to work carefully and eliminates neglectful practices.
No serious developer will ever commit to ship software free of bugs. On the contrary, that would give people false security, which can in turn lead to further neglect.
Simon Tatham doesn't have any profits, but his PuTTY is installed on every developer's Windows machine.
someone taking non-commercial products and commercializing it is where the line is drawn right?
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
Sure if you add more complexity, you add more attack vectors, but there's an easy way to reduce your legal culpability there: just don't collect any PII. Even in the scenario you propose where anonymous HTTPD logs are a liability (which... yeah, is not going to happen any time soon) the solution is simple: turn off logging. If the legal precedent is established, the defaults of our software will change to match.
You're coming at this whole thing from the perspective that wise and sane rules would be put in place and then sanely enforced for the welfare of everybody—by the same US government that told people not to wear face masks to protect against covid, while also shipping defective covid tests from the CDC and prohibiting the use of any other covid tests. And that's a case where nobody was in a position to profit by making the rules hard to comply with.
Listen, you know and I know that you can serve a personal website perfectly well with /var/www and a stock Apache config. But the proposal we're discussing here is precisely to take that judgment call away from people like you and me and give it to people like Donald Trump, using laws written by, most likely, lobbyists from Oracle and Microsoft.
> Listen, you know and I know that you can serve a personal website perfectly well with /var/www and a stock Apache config. But the proposal we're discussing here is precisely to take that judgment call away from people like you and me and give it to people like Donald Trump.
Let's revisit that proposal:
> 1. defining legal liability for bad code in a commercial product
> 2. making [website operators] legally liable for any and all leaks of our personal records that a jury can be persuaded were unnecessarily collected
I believe we both agree that neither of these technically apply to the personal website scenario (static hosting not collecting any PII).
So your argument as I understand it is: in order to make the above liabilities legally enforcable for scenarios where they do make sense, we will end up with regulations similar to those for handling "sensitive" data (such as financial/medical information) being imposed on _all_ software / online services (such as basic static websites). This will happen because laws will be written in an environment of near-total regulatory capture.
This argument is plausible, but it relies on a bit of a non-sequitur: expanding the scope of data collection/handling regulations will inevitably extend to regulating the publishing of software.
It might be in the interest of the current software behemoths to push for such a system, but I don't really see it. They derive too much economic value from the current "free as in lunch" open-source to shoot themselves in the feet like that. It seems more likely they would:
1. try and narrow the scope of their own liability (by heavily constraining which categories of software carry that burden) 2. try to minimize the costs to themselves (by demanding compensation from governments for the work required to meet those regulations) 3. try to offload liability to vendors (who can then demand compensation for taking on that liability).
Points 2 and 3 could be a large cash cow for free and open source software, though I doubt many will be able to successfully capitalize on it.
It's true that imposing liability for publishing defective software is logically independent from imposing liability for collecting unnecessary PII that leaks. But pjmlp's quote from the article we were commenting on explicitly proposed doing both of these:
> For example, if you want to see Microsoft have a heart attack, talk about the idea of defining legal liability for bad code in a commercial product. If you want to give Facebook nightmares, talk about the idea of making it legally liable for any and all leaks of our personal records that a jury can be persuaded were unnecessarily collected.
So my argument does not, as you say, "rely on a bit of a non-sequitur: [that] expanding the scope of data collection/handling regulations will inevitably extend to regulating the publishing of software." The proposal in question is to both regulate software publishing and also regulate data handling, so it's irrelevant whether or not the scope would thus "inevitably extend" from one to the other.
Probably it is true that the most favorable situation for the current incumbents would be to have no liability, as at present, or as minimal liability as they can get away with. But the second-most-favorable situation, and one that is definitely politically viable even if the current situation is not, would be to have a regulatory regime that raises the barriers to entry for new entrants as much as possible and prevents disruption to their markets, by enshrining in law the particular way they're doing business today: AI melody recognition for prior restraint of free speech, combined with armies of outsourced moderators to watch for terrorism and pornography, centrally-controlled app-store platforms, locked-down end-user hardware (with a grandfathered carve-out for desktops and laptops), real-name policies, fax-us-your-passport ID verification, "two-factor" authentication that turns out to be one-factor, and so on. Anything that encourages you to post stuff on your own blog or website would be a big drawback for GitHub, YouTube, and Fecebutt.
Are you going to put up with accountability that you might have misconfigured something and it allowed attackers to scam people or serve porn?
You are perfectly sure that you are going to keep your small site updated all the time and you won't forget about it?
Because that is where it is going - it is not just code that can be vulnerable - but also combination of different software, combination of configurations. If you install 2 applications they might interact in a way that makes your system vulnerable.
Software is infinitely complex we can cut down complexity but then anything that is useful and complex will cost a lot more.
What if somebody steals my kitchen knife and uses it as a murder weapon?
> Are you going to put up with accountability that you might have misconfigured something and it allowed attackers to scam people or serve porn?
Yes. This is (and always has been) the price of operating a website on adversarial public networks. We established relatively simple ways to make this possible even for individuals decades ago.
> You are perfectly sure that you are going to keep your small site updated all the time and you won't forget about it?
As I replied to the sibling comment, when was the last time there was RCE for Apache or Nginx configured to serve static files from a webroot? We are talking about personal websites here after all.
> Software is infinitely complex we can cut down complexity but then anything that is useful and complex will cost a lot more.
I think I disagree with you on where the threshold of usefulness is.
https://www.vice.com/en/article/qj8xz3/a-defunct-video-hosti...
People like to embed things in their personal websites - integrate them with third parties. That is my point.
Now you are responsible for what you embed on your personal website and what you publish.