Contracts, End-User License Agreements (EULAs), and Unconscionability.

As covered in the reading, some forms of contracts are not legal and binding. If a reasonable and well-informed person would not agree to the terms of the contract, it is said to be unconscionable (and therefore unenforceable). The Uniform Commercial Code " 2-302 Unconscionable contract or Clause" states that "[i]f the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract."

Under the common law right of "merchantability", all goods purchased carry an implied warranty of fitness for purpose. For example, when one buys a car the person has a legal right to assume that the car will not randomly explode and the manufacturer is liable for damages if it does (See the 1972 Ford Pinto which did just that). If Ford were to have sold the Pinto with a EULA that required drivers to exempt Ford from liability for any explosion in the even of an accident, the courts would almost certainly have found such an agreement to be unconscionable.

Microsoft Windows (and almost all computer software) is sold under a EULA that requires consumers to accept the product "AS-IS" with absolutely no warranty of merchantability or fitness for purpose. Such software may be responsible for running patient information systems, combat control systems, or supervisory control and data acquisition (SCADA) systems under which a flaw could easily lead to serious loss of life. Do some additional reading and research into these topics and consider the following questions (please bring in references to support your views in the essay).

Is this unconscionable? Should the right of merchantability apply to computer software? Should companies be held liable for damages due to the failure of software products? What are the likely outcomes of such changes? How does this apply to or affect issues regarding computer security?