Software and strict products liability: Technical challenges to legal notions of responsibility

The law of products liability in tort is designed to maintain a reasonable balance between the inevitable social costs and the benefits of innovative product technologies. Technological development must be supported but only to the extent that society receives sufficient benefits to make the sacrifice worthwhile. The entire basis for implementation of this balance resides in the objective categorization of any given product defect into one of the following: (1) manufacturing defects: failures to correctly implement safety features from the design; and (2) design defects: failures of the design itself to exhibit socially acceptable levels of safety. Software has been described as an artifact with fundamentally different properties than other engineered artifacts. Will the defect categorization operate as designed when applied to software as part of a product? The answer is "no." Software has unique characteristics that increase the overlap between the categories of defect to the point that known distinctions break down and become useless in promoting the very social and technical goals that supported their creation in the law.