Software As a Profession
48 Pages Posted: 21 Oct 2019 Last revised: 21 Jan 2020
Date Written: 2020
When software kills, what is the legal responsibility of the software developer? Discussions of software liability have avoided assessing the duties of reasonable care of those who write software for a living. Instead, courts and legal commentators have sought out other workarounds—like immunity, strict liability, or no-fault compensation—that avoid the need to unpack the complexities of the software development process.
As software harms grow more severe and attract greater scrutiny, the latest call has been for software developers to be held to heightened duties of professional care—like doctors or lawyers. Yet, courts have long rejected those claims, holding that software developers lack the traits of traditional professionals. This discord points to a larger confusion in the literature regarding the proper purpose of the professional designation.
This Article argues that the core function of the professional designation is to shift the tort law standard from the prescriptive “reasonable care” standard to the descriptive “customary care” standard. That deference to professional custom is necessary where bad outcomes are endemic to the practice, those bad outcomes are caused by inherent uncertainties and imprecisions in the art, and the widespread practice of the art is vital to society. Despite best efforts, doctors lose patients and lawyers lose trials. The reasonableness of those efforts cannot be judged fairly under an ordinary person standard, which allows too many occasions to second-guess the practitioner’s performance.
Software developers present a compelling case for inclusion in a customary care regime. Building software systems is uniquely hard because software complexity is orders of magnitude greater than conventional complexities. This Article argues that a customary care regime would preserve incentives to innovate in this uncertain environment, while also opening the door to greater transparency and legal oversight of software development practices. Additionally, treating the software community as a profession would channel efforts within the community to establish and codify its own consensus practices and customs.
Keywords: software safety, software liability, professional malpractice, customary care, computer ethics, AI ethics, tort
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