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  #1  
Old 11-17-2003, 10:49 AM
Muxlow Muxlow is offline
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Default A Question About Class-Action Lawsuits

This isn't meant to start ANYTHING, and it's MERE COINCIDENCE that I'm posting it right now. I'm not threatening, implying or suggesting that anyone should sue DigiDesign. Okay? Okay..

A few years back, Quark released a new version of QuarkXPress that screwed a lot of people over. Money was lost, time was wasted, clients were upset, business was hurt. Same with Apple's 10.2.8 debacle. Same with Macromedia's MX suite for OS X. Same with Windows ME or CE or whatever it was they released a couple years ago. Same with a lot of software titles.

Now, you can say "stay off the bleeding edge" and "if it's not broke, don't fix it," all you want, but I think most people (ie: jurists) would agree that a person should be able to purchase a product and trust it to work. So, if a company releases a product and that product's un-advertised and unexpected shortcomings causes it's customers' businesses to suffer, shouldn't that company be held accountable?

If the answer to the above question is 'yes' (and I think that it is), what's stopping class-action lawsuits in these instances?

And if the answer to THAT question is "Well, nothing, really...", then what might the ramifications of a high-profile class action lawsuit be? Would companies simply stop releasing bad code? Or would companies release painfully slow updates in fear of unleashing bugs? Or would companies be forced to start offering public lists of "known issues" - something like what you typically get in a Read Me file with new software, AFTER you've paid for and installed it - with any new release?

Again, I'm NOT trying to start an argument, and I'm NOT really interested in suing anyone, but I've often wondered about this. Any armchair lawyers on the DUC?
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  #2  
Old 11-17-2003, 11:17 AM
dBHEAD dBHEAD is offline
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Default Re: A Question About Class-Action Lawsuits

Well in the first place I'm only an armchair lawyer, so I'm not foisting myself off as being certain of what I'm talking about. That having been said...

To start, I think if there was any merit in such a lawsuit (legally speaking), they would already be in court. We litigate EVERYTHING in this country, and people use the courts to stuff their pockets all the time.

Secondly, I think that you'd have to demonstrate that there was true negligence on the part of the company in putting the product out. You'd have to show either that they knew there were defects and put the product out anyway OR that they did not adequately test the product.

Third, you'd have to demonstrate that it was REALLY a defective product. I know people who use Windows ME and it works fine for them. In terms of operating systems, you can't expect the company to test an OS with every single piece of software that might possibly use it. That's insane.

Finally, whenever you install software, you usually have to click an agreement that holds the company that made it legally harmless for any damage it does. This pretty much kills any possibility of a lawsuit in the crib.

But who knows.
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  #3  
Old 11-17-2003, 11:55 AM
Muxlow Muxlow is offline
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Default Re: A Question About Class-Action Lawsuits

Interesting, especially about the agreement. I really should read those, huh?
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  #4  
Old 11-17-2003, 12:51 PM
mcconnellsteve mcconnellsteve is offline
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Default Re: A Question About Class-Action Lawsuits

Quote:


Third, you'd have to demonstrate that it was REALLY a defective product. I know people who use Windows ME and it works fine for them. In terms of operating systems, you can't expect the company to test an OS with every single piece of software that might possibly use it. That's insane.


in addition to all the things you've described above, wouldn't you also have to demonstrate there were ACTUAL monetary damages? not just perceived loss in terms of not being able to upgrade to latest & greatest, but that there was an actually commercial interruption due to something the manufacturer knew about (or should have known about) that demonstrably caused a loss of revenue (or something to that effect)?

i'm a fairly new user -- purchased my 002 in april of this year and i use an ibook g3 733 which runs ptle 5 on os9. i know this is already "old" technology and there are newer versions of digi hw/sw and apple hw/sw that have different functionality. but i don't think there's actually any damage to me. i can keep working in this environment for the forseeable future and when i feel like i've milked my current setup for all it's worth, i'll look around at whatever options are avaialble at that time (i.e,. a g7 w/ptle 10.8 on os XIV).

maybe we can discuss this using a car analogy. if i buy a 2003 honda and in 2004 they come out with a whole new host of features for that model but i can't have access to them, have i really been damaged? i have the option of selling my '03 for an '04, or waiting until '07 when i want that year's latest & greatest. is this analogy useable for this discussion?

steve

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Old 11-17-2003, 01:16 PM
Muxlow Muxlow is offline
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Default Re: A Question About Class-Action Lawsuits

Quote:
maybe we can discuss this using a car analogy. if i buy a 2003 honda and in 2004 they come out with a whole new host of features for that model but i can't have access to them, have i really been damaged? i have the option of selling my '03 for an '04, or waiting until '07 when i want that year's latest & greatest. is this analogy useable for this discussion?

steve
I think the analogy would be more like this:

You finally break down and buy a new Honda, and as soon as you get it home, you find that your new car won't start half the time. Even worse, you rely on the car for business purposes (delivering pizza) and are now out of work because of it's failures.

You're absolutely right about showing ACTUAL damages. I'm thinking the studio guys, pro shops, etc., not hobbyists like myself who are merely inconvenienced. For that, I'll switch software providers, but I don't get to sue over it.

As for proving that said product was defective, I think that's a weak argument. If you buy a car with air conditioning and find out that your air conditioner doesn't work in Florida (ie: our software doesn't work with your system), is it your loss because Honda can't possibly know what states their AC is going to work in? Of course not, they sell a product, and it's their responsibility to see that it works or at least provide some recourse when it fails in these "unforeseeable" situations. I admit that expecting testing on every PC isn't realistic (testing every Mac IS, however), but a money back guarantee would make a lot of sense in this regard.

Those "agreements" (why don't we get to read those agreements BEFORE we purchase the software, or at least be able to return the software if we don't agree to the agreement?) might be the a software provider's saving grace, but it seems that anyone who's been burned by bad software should be entitled to a refund and tech support for uninstallation, and anyone who's been monetarily damaged by bad software should be entitled to the same, plus compensation for any losses.

Surprising that someone hasn't tried something like this...
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Old 11-17-2003, 02:03 PM
dBHEAD dBHEAD is offline
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Default Re: A Question About Class-Action Lawsuits

In fact, you might have a case about getting to return the software if you disagreed with the agreement. Since you could not possibly have known the specifics of such agreements when purchasing the software, it seems reasonable that you should be able to return the software. In essence, requiring you to agree to something after the purchase is kind of making you sign an agreement under duress.

To be sure, breaking the seal on a software CD package is often considered a "final purchase," but if you didn't know you'd have to agree to something in order to use the product, there is a definite legal issue there. Whether or not there is an established case history for such an issue I can't really say. That's where a real lawyer might be able to clarify things.
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  #7  
Old 11-17-2003, 02:21 PM
jmp jmp is offline
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Default Re: A Question About Class-Action Lawsuits

You know what guys?

As a G4 Powermac user, which is less than a year old, and will not be supported with the new release this Friday, I'm as frustrated with Digi as anyone.

But look, they are offering us this DUC which THEY pay for, and THEY maintain. This kind of talk really doesn't belong here any more than dissing someone who invited you into their home for a beer. In fact, I'm amazed they have let us blow off steam on the DUC to the extent they already have.

If this topic is to be explored, I suggest it be taken to a neutral site.
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  #8  
Old 11-17-2003, 02:23 PM
Lowfreq Lowfreq is offline
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Default Re: A Question About Class-Action Lawsuits

Quote:
I think the analogy would be more like this:

You finally break down and buy a new Honda, and as soon as you get it home, you find that your new car won't start half the time. Even worse, you rely on the car for business purposes (delivering pizza) and are now out of work because of it's failures.

You're absolutely right about showing ACTUAL damages. I'm thinking the studio guys, pro shops, etc., not hobbyists like myself who are merely inconvenienced. For that, I'll switch software providers, but I don't get to sue over it.

As for proving that said product was defective, I think that's a weak argument. If you buy a car with air conditioning and find out that your air conditioner doesn't work in Florida (ie: o

ur software doesn't work with your system), is it your loss because Honda can't possibly know what states their AC is going to work in? Of course not, they sell a product, and it's their responsibility to see that it works or at least provide some recourse when it fails in these "unforeseeable" situations. I admit that expecting testing on every PC isn't realistic (testing every Mac IS, however), but a money back guarantee would make a lot of sense in this regard.

Those "agreements" (why don't we get to read those agreements BEFORE we purchase the software, or at least be able to return the software if we don't agree to the agreement?) might be the a software provider's saving grace, but it seems that anyone who's been burned by bad software should be entitled to a refund and tech support for uninstallation, and anyone who's been monetarily damaged by bad software should be entitled to the same, plus compensation for any losses.
I don't think the 'Car' analogy works here. After all an automobile is a self contained unit that cannot be copied & that you can own out right. If a component in that system fails, a warranty takes care of the issue. But to try and sue Toyota becouse you couldn't deliver pizza's because your AC went out and you had the car at the dealer for repairs won't fly. If Digidesign made a self contained digital recording system, like Mackie, Alesis, Tascam, Iz's RADAR, etc. (computer and all), maybe that analogy would apply. Very Limited Liability is the defacto standard in software sold to consumers. To rely on one system, that can fail at any moment, for business may not be the smart choice. So the chant of 'PT6 won't run right and I'm losing customers' isn't something our over crowed court system needs to deal with. You can, in certain circumstances, return the uninstalled software to the manufacterer for a full refund even if the box is opened. I've done it with Microsoft in the past. It's time consuming & you swear your life away (no Bill, I never loaded it...I swear it) but it did work. Although selling it via E-bay would probably been smoother.
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  #9  
Old 11-17-2003, 04:37 PM
skaught skaught is offline
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Default Re: A Question About Class-Action Lawsuits

Caveat Emptor... Microsoft doesn't get sued everytime someone gets a bluescreen. Windows never purports to be crash-proof, and the license agreement disclaims any responsible for loss and/or damage. The situation is the same with Digidesign.
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  #10  
Old 11-17-2003, 05:15 PM
Greenshoe Greenshoe is offline
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Default Re: A Question About Class-Action Lawsuits

That's what indemnification is for in just about any agreement between two parties. It's usually a clause that says you as the user will hold [software company] harmless from any loss or damage resulting from the use of their software, other than loss from willful negligence and outright fraud on the software company's part. They go on to say that the [software company] makes no represenations or warranties that the software is guaranteed to be 100% bug free, though they have made best efforts to do so. And proving willful negligence a priori and outright fraud in a court of law (or mediation conference) which resulted in harm or substantial damage to you is more expensive in terms of time, energy and money than any revenue you've actually lost or what users can prove they collectively lost.

This doesn't mean they can't be sued - but it's written so that it's not really worth your time unless it causes something traumatic like death, personal injury, or financial disaster - all consequences that a piece of software is highly unlikely to cause. Lawsuits take time, lots of lawyer $$$, and effort to process - and collecting on damages is yet another story.

As for lawsuits, there needs to be tort reform...well that's another discussion.
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