Fed-up software user gets payback

June 07, 1999|By Matt Beer | Matt Beer,San Francisco Examiner

When does a software bug cross over from annoying glitch to class-action lawsuit?

A lawsuit filed in New Jersey challenged imperfect versions of software, leading the software publisher to release a free fix.

"There has to be a line drawn between a bug and a design defect," said Michael Boni, the Philadelphia lawyer who filed the class-action case against Franklin Electronics Publishers Inc. of Burlington, N.J. "And the courts have to do that drawing."

Computer users expect occasional software bugs, the errors that hamper a software title's performance. Consumers wait for the software publisher to issue a fix or hope that the bug is repaired in the next version to appear, which they usually have to pay for.

It's an uneasy relationship akin to buying a new car that sometimes refuses to start.

In the case of the car, though, government-ordered recalls and consumer lawsuits are common remedies. With defective software, users have been content to complain to customer support lines, hunt the Internet for fixes or give up and buy new software.

A New Jersey man, Jacob Winigrad, refused to follow that route. In October 1997, he bought an REX PC companion, a popular credit card-sized electronic organizer that let him track his phone list, keep a calendar and set priorities on a to-do list.

Sort of.

According to court rec-ords, Winigrad's REX had an annoying habit of scrambling the order of his to-do lists. When he called the support line of the manufacturer, Franklin Electronic Publishers, he was told the company knew of the problem but that it could not, or would not, fix it. This is a familiar scenario for home software users.

Winigrad also alleged he was charged for every minute he was on Franklin's product support telephone line.

"Thus," his complaint states, "plaintiff was advised that he would be billed $2 per minute just to learn that the product he purchased, and which was under warranty, was defective and would not be repaired or replaced by the company."

On Feb. 24, 1998, Winigrad filed a class-action lawsuit against Franklin in Camden County, N.J., Superior Court.

In his multicount complaint, Winigrad accused Franklin of negligence, breach of warranty and violation of New Jersey consumer protection laws. Winigrad alleged that the REX he and others bought was defective in design.

In a settlement reached last month, Franklin announced it would issue a free software upgrade to fix the REX's to-do list priority problem.

"Although Franklin vigorously denies any liability," the company said, "it has agreed to settle the case to avoid the burden of continued litigation."

Franklin did not return phone calls seeking comment on the settlement.

According to a recent PC World magazine poll, almost 80 percent of its subscribers said they had bought software that contained bugs.

"Buggy software is a huge problem," said Scott Spanbauer, PC World contributing editor who writes the magazine's monthly "Bugs and Fixes" column. "It's a massive waste of time and utterly frustrating, and we pretty much take it lying down."

The software industry counters that producing bug-free software is impossible, given the different combinations of computers, printers, scanners, Internet connections and other configurations that users install software on.

"You can test and retest and retest software in as many configurations that you can think of, and there will always be someone who will use the software in a way you didn't anticipate," said Lauren Hall, chief technology officer for the Software and Information Industry Association, a Washington, D.C., software publishers group. "It's just impossible to create bug-free software titles."

One proposed package of legal remedies for software bugs is the Uniform Computer Information Transaction Act, which would help state lawmakers and courts arbitrate software defect disputes. The guidelines will be voted on in July when the National Conference of Commissioners on Uniform State Laws meets in Denver.

These guidelines, backed by software industry heavyweights such as the Microsoft Corp. and IBM, have been roundly criticized by consumer groups as favoring software publishers.

The guidelines "permit software sellers to write contracts that sidestep the usual statutes and case law protecting consumers," said Jamie Love, director of the Consumer Project on Technology, a Washington, D.C., advocacy group started by Ralph Nader. "They want to elevate themselves above the law, basically."

Emery Simon, counselor with the Washington, D.C.-based Business Software Alliance, disagreed.

The Uniform Computer Information Transaction Act was drafted by a committee of specialists, said Simon, whose group represents software companies.

The proposal "was created to ensure uniformity in dealing with these problems, not overturn or otherwise do harm to existing law."

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