Policy recommendations for software liability laws.

• A distinction in the law should be made between safety-critical and normal software applications.

  Because different liability rules will induce different levels of care, any software liability statute or doctrine should differentiate between regular and safety-critical applications. More exacting levels of care should be demanded from programmers who are building systems whose failures could result in the injury or loss of a human being.

• For regular (non-safety-critical) applications, a negligence standard should be imposed. Guidelines for the standard should be drafted by computer professional organizations. In these cases, the burden of proof would be on the consumer to show that the company did not meet the guidelines.

  One of the defining characteristics of the software industry is its high level of innovation. The prevalence of start-up companies in the industry attests to this fact. We feel that imposing strict liability on software engineers would expose individual programmers as well as companies to an overwhelming amount of possible litigation. The fundamental nature of software engineering makes bug-free software unattainable. With the unique characteristics of software in mind, error-free software should not be expected. Placing the burden of proof on the consumer would discourage frivolous lawsuits.

• The negligence standard should be tailored to the concept of software engineers as professionals.

  Software engineers have a pre-eminent place in society today. Their trade demands professional responsibility. Because software engineers have a huge informational advantage over users when it comes to software, they should be held to high standards of duty.

• There should be put in place ex ante government regulations on software projects that deal with safety-critical software. Strict liability should be used in litigation dealing

  In cases where there is just too much at stake, the government should step in and impose regulations on the software projects. These regulations might include the certification of programmers as well as government performed testing before release. The rule of strict liability is justified because of the potential dangerous results of failure.