[DUG] A change in upgrade policy coming from Embarcadero

[Paul A Norman]

"open ended bug fixes " 2009/9/19 David Brennan <dugdavid at dbsolutions.co.nz>

Dear David,

When we talk about D8 and especially 2005 we are not talking about minor
matters.

Others in the past have listed what does not work, the list is not too cool.

What needs to be realised here is that there is a very big difference
between "bugs" than may be a little annoying to some one, and things that
are actually fundamental to the application's operation. They are not "bugs"
but I believe misdemeanors :-)

If a 'bug' actually stops the application operating as it shuld in any
significant way it may in my opinion fall fowl of Lord Deninnigs famous
judgement onn when is a car bought under contract, not a car? (More below)

Developers need to keep to very high standard in this, if for no other
reason than that if commercial resentent levels rise to high in the broader
community with developer's attitudes, regualtion will follow. It is already
being considered in some quarters.

Regulation will not be nice.

Seek legal advice on any and all of the following points of my personal
opinion.

At present the general provisions regulating the industry I believe are the
Fair Trading Act, Common Law of Torts and a few Absolute liabilities.

Absolute liabilities are things contained in Statute or if you like also
those Universal moral principles of duty of care.

For example if one designs a computer application say for the operation of
lifts, and people are trapped and injured or even die becasue it is later
determined by a competent tribunal that one failed to develop the
application using the genreal standards of care and diligence that a
developer should use, it is even possible in some juristdictions that the
developer could be found guilty of culpible homicide - man slaughter!

In NZ the equivalent commonly known scenario was where previously mechanics
have been found guilty for things that they missed during WOF inspections of
vehicles where injury or death has resulted.   Not becasue they mised the
items but because it could be demonstrated that they had not exercised in
this case an absolute duty of care in their work.

The standard is not always simpolt that there is a problem, but the nature
of the problem.

In software ddevelopment I would submit that if your client wants to use
your software for an uninteded or unenvisaged purpose at the time of design
brief, and this breaks your application, then the developoer maybe should
rightly feel indignent that the problem is laid at their door.  And maybe
could expect to charge out to make the new use of the application work.

If however a period of time elapses before it becomes apparent that some
proscribed feature of the software as brieefed and paid for does not
function properly, than no matter what periods of testing or due diligence
my be inserted in the contract the developoer may find himself liable for
soemthing, and the amount may increase with time the more he fights it.

You can not always contract out of established law.  Often you can not at
all contract out of law.

The reason is that one is subject to the Sovereign power of the jurisdiction
you are operating in.  And contracts made under that jurisdiction can not
contravene the determinations of that jurisdiction. Unless there is specific
provision to do os.

In other words in NZ there are provisoins of the Fair Trading Act that can
not be contracted out of.

As a matter  of public policy, this helps prevent any form of commercial or
other duress during treating to contract.

Now be careful in saying that a licanse is not the same as ownership.

Truly it is not, but if you take money for it, more and more legislators and
 courts all over the world are starting to say that there are
responsabilites on the person who receives the money to give value.

In common law there are lessor duties of care that people can rely on even
in an contract situation.

Lord Denig found that even though the man who bought a car was bound bby
contract to pay for the car, because the car was defiecent in several ways
from what a reasonible man might expect a car to be and do -- legally it was
not a car!  So he granted the man relief.

If your application fails to meet certain requiremetns of your contract
formal or implied, or shows that you have not designed it with the
reasonible care that a resaonible person should do so as a developer, then
you may get a nasty surprise if you don;t want to put it right!

I wholoehearetadly belive that D.2005 is headed that way.  Even the service
pack three doesn't work on some people's machines as a known issue!  It
doesn't on my main one. F1 gives no help at all let alone the inadequate
help it gives on the other machine I sue.  I can not cut copy ot paste in
the Form Designer .. I could go on! but I won't bore you, hte issues are
well established else where.

So where does E satnd? In my view they bought a franchise - and nneed to fix
the elkements of the franchise that they want to make money out of.  Does E
have any liability to licensees under the franchise?

Legal, moral, practical? Yes beyond doubt.

But most importantly commonsense wise they have obligations.

We are people who want to get on with each other.

E and their staff want to feel that they are acting in a caring way towards
their clients - just as people.

Saying it is business and therefore different rules apply, doesn't cut it
any more - its casued too many problems and is a failed philosophy.

Now when you buy a franchise or equivalent - you can't say I am only
responsible for the bits I like, or which will give us a qucik cash fix.

You need to act responsabily accross the board and deal with things as they
are, not as they would wish them to be.

Isn't the good price E is rumoured to have got D for, going to reflect the
issues of D that B had to concede sale price over?

And therefore does that not mean that E have been compensated already for
the D.8 D.2005 liability?

So come on E you've had your financial compensation for the D.8 D.2005
problems, pass some on and help us up!

And as for the D.3 -> upgrade issue surely here again commonsense comes into
play ... Developers are people don't be too quick to play with their minds
like this.

The franchise has certain groundrules we bought our licenses on certain
understandings, you bought the franchise on those understandings, change it
to improve the experiences of the Licenses hoders not to remove provisions.

Put some real incentive in there, and as well leave the dooor open!

Seek legal advice on any and all of the above points of my personal opinion.

paul










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