Software

All products, if defective, can cause harm or personal injury, and defective software is no exception. Although software may not be dangerous in the same sense as a harmful drug or a defective power tool, it can still lead to injuries of an economic or even a personal nature. As in all products liability cases, the advice and counsel of an experienced attorney can help to determine whether a valid claim exits and to ensure the best possible outcome. Counsel will carefully examine statutory and other developed bodies of law in his or her jurisdiction to determine what must be proven to succeed in a products-liability claim relating to software.

One basis for software-related liability is defective content. The defect may exist in the primary content of a software product or in some ancillary or supplemental content. Because CD-ROMs have a lot of storage space, they often include a lot of added content, like books, articles, maps, audio clips, video clips, and clip art. Sometimes, the publisher or seller of the CD-ROM buys this additional content at a very low price and copies it onto its disks without testing it other than to determine that it installs correctly.

If the information published on the disks is incorrect, the publisher or seller may, in limited circumstances, be liable to persons who rely on the information and suffer damages as a result. Cases in which courts may be willing to hold a software maker liable for defective content include those in which the maker is also the author of the content, the content is about its own product, the content is defamatory, the maker created a warranty relating to accuracy or safety, the maker has a special relationship with the user of the content, or the content was intended to be the sole source of information available to the user and exposes the user to a risk of harm.

In maker/author cases, for instance, courts have held that although publishers do not ordinarily have the obligation to verify the accuracy of everything they publish, when the publisher itself contributes some of the content, the burden of establishing accuracy may be more fairly assigned to the publisher. In addition, statements of fact about the software publisher's own product can be taken as warranties that the product will work as described, and thus liability may ensue. Defamation liability arises when software content contains false statements that damage the reputation of businesses or people. Warranty-based liability, by contrast, arises when the software publisher makes an exaggerated claim, such as by proclaiming that the information contained in the software is up-to-date when in fact it is outdated, and someone relies on the information to his or her detriment. Liability based on a special relationship might exist if the software publisher has a professional or contractual relationship with a particular person or business entity and knows that the person or entity is relying on the accuracy of the content. Legal and accounting software publishers may fall into this category. And when a software publisher knows that users are relying exclusively on its products to provide them with information on a particular subject, a duty may arise to ensure the accuracy of the content.

On the other hand, software publishers generally are not held liable in cases in which they simply duplicate information onto disks and a user relies on it. In such cases, principles of the First Amendment may govern. Thus, courts have often held that publishers have no duty to investigate the accuracy of everything they publish.

Many software programs are distributed with shrink-wrap or click-wrap licensing agreements that disclaim virtually all claims of performance and all warranties, express or implied.

Economic losses are more likely to result from defective software than are personal injuries. An individual or business may suffer economic damages if, for instance, it relies on accounting software that fails to live up to its purposes and the books are off as a result. Or the publisher of tax software that fails of its essential purpose, leading to the imposition of penalties on a taxpayer, may be held accountable for those penalties. Personal injury liability, although perhaps remote, could result if, for example, a medical software publisher that promised "the latest in trustworthy medical information" included erroneous information in its products and a person relied on that information and suffered adverse health consequences as a result.

If you have suffered damages as a result of defective software, you may be able to make a claim against the manufacturer, publisher, or seller of the product. When seeking an attorney to represent you in connection with such a claim, be sure to investigate his or her background in products liability, personal injury, or computer law. Ask questions about his or her training and experience so that you can make an informed decision about whether this is the right person to zealously represent your interests against a big company that may have many more resources than you do to fight the claims against it. Only with a veteran attorney on your side can you be sure to achieve an outcome that best compensates you for your losses.

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Software: Do I Have a Products Liability Case Based on Defective Sofware?

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