The litigation, legal experts said, is an effort to use the courts to make software subject to product liability law — a burden the industry has so far avoided and strenuously resisted.
“For a software company to be held liable would be a real extension of liability as it now stands,” said Jeffrey D. Neuburger, a technology lawyer at Brown Raysman Millstein Felder & Steiner.
To date, software companies have sidestepped liability suits partly by selling customers a license to use their programs — not actual ownership — with a lengthy list of caveats and disclaimers. So the warranty programs offered by PC makers, for example, cover hardware but not software.
The industry has argued that software is a highly complex product, often misused or modified by consumers. Assigning responsibility for a failure, the argument goes, would be unfair to any single company.
Besides, software executives say, the industry is a fast-changing global business that is largely led by United States companies. Opening the industry up to product liability lawsuits, they say, would chill innovation and undermine the competitiveness of American companies.
Yet whether the software industry can remain beyond the reach of product liability is still not certain. The modern economy — from office work to financial markets to power grids — depends increasingly on software. And the trial lawyers are not the only ones who think software makers should face stronger incentives to create products that are more reliable and secure.
Outside of the courthouse, regulations and legislation may also be deployed to prod the industry toward more secure software.