Who's Responsible If An Open Source Software Powered Self-Driving Vehicle Kills Someone?
Hotz recently wrote in an email that “It's not my code, I did not release it” and that Comma.ai Inc. “released and maintains it.” Comma.ai Inc. includes the disclaimer, ““THIS IS ALPHA QUALITY SOFTWARE FOR RESEARCH PURPOSES ONLY. THIS IS NOT A PRODUCT. YOU ARE RESPONSIBLE FOR COMPLYING WITH LOCAL LAWS AND REGULATIONS. NO WARRANTY EXPRESSED OR IMPLIED.” Hotz is technically protected by the standard MIT open source license.
Open source software currently lives in a legal grey area. A series of court cases in the 1990’s declared that open source is “free speech” and therefore protected under the First Amendment. If someone intends to cause harm with their “free speech”, however, they could be liable for damages. If Comma.ai Inc.’s software proves to be dangerous, they could potentially be sued.
Software has an even fuzzier legal status. Lawyers and judges do not agree on whether software is a “product”. Some argue that code is a set of instructions and therefore protected under the First Amendment. In this case, downloaders would need to heed the expression “Buyer Beware”.
Electronic Frontier Foundation (EFF) attorney Kit Walsh, however, argued, “Prosecutors and plaintiffs often urge courts to disregard traditional First Amendment protections in the case of software because it has a ‘functional’ aspect when it can be executed, making it easier for the instructions it describes to be followed.” Other lawyers insisted that you cannot “contract away” liability if the product you sell (or even give away for free) is dangerous.
Hotz may also need to reconsider his current contracts. The MIT license protects Hotz and Comma.ai from those who download the software, but not from third parties. For example, if you are harmed by a vehicle that contains Comma.ai’s self-driving car software, you could potentially sue for negligence. Michael Overly, a partner at Foley & Lardner LLP, recommends that Hotz get an additional license stating that the downloader will be responsible for any potential financial damages done to a third party.
Hotz, however, is confident in the release of his software. He recently remarked, “We can easily defend against any frivolous lawsuits.” Those sound too eerily like famous last words.