Who can we sue? Or - the Myth of Riskless I.T. Management

This started as a conversation on an Open Source list - on how to respond to people that assert:

"We can't use Open Source because there's Nobody to Sue".

This is a response I received:
The "Who can we sue" issue should be questioned.

(i) Can the 'propriatory' software company be successfully challenged? Ask them how many people have successfully won a court case against Microsoft for example?

(ii) To sue someone you need to allocate resources to the 'sueing' budget. Ask them that if they plan to sue people then have they budgeted for the possibility? or do they expect their insurance premiums to cover that? Wouldn't the insurance companies be concerned about the 'who to sue' bit and not the company?

(iii) You can have software companies who write non open source software who have no money. Sure you could sue them, but you end up losing money and if you send that company broke who is going to fix or maintain the non open code that your company is probably still using?

From the author:
You can attribute me if you wish. I'm not fussed.
The arguments I stated were merely adapted from Donald Lancasters case against patents.
Long before software patents, Lancaster was a brilliant electronics inventor. I learned a lot from his books whilst a teenager.
He wrote this brilliant piece of work that shows how pointless patents actually are.


My response:

You're right on the money - "Who can we sue?" is based on multiple false premises - but it's *the* mindset of the worst management - "Risk Free" (a variant of CYA). While you've nailed the rational responses and we can collectively prepare answers & business cases on them, I believe "this is a situation to which logic Does Not Apply". :-(

These are people who believe & act out, but won't say, that you can transfer Risk.

You can't - you can try to avoid, mitigate, accept or manage it - but never pass it on. These same people will not sue for poor performance, except in exceptional circumstances [Risk Adverse == spineless?]. They adopt denial and avoidance (i.e. head-in-sand) w.r.t. to the Risks they are at effect of, or rather, they've put their employers in the way of. There are few personal consequences for them if they bring the company down - or if it just muddles along doing poorly.

This Risk Adverse/Risk Intolerant management attitude seems prevalent in Australia (corporate and govt) and leads to:
  • Who else has done this? nobody will go first.
  • Nobody else is doing it... if it goes 'wrong' in any way, I'll be to blame.
  • Everyone else is doing it... If it goes wrong, I've made the best possible decision & can't be held to blame.
  • Who can we sue? which you nailed - and they never will.
  • We need to deal with a company our size or bigger. Big Orgs like to deal with Big Orgs - the illusion of 'strength in size', 'expensive must be best' and "Must be Safe/stable" All of which are completely untrue - HIH, Enron, Global Crossings, ...
  • Our consultants/gurus/reports/conferences aren't recommending this. see 'everyone else doing it'.
All these stances [allied with the immovable triplet: "Arrogance, Ignorance and Self-Delusion"] have led to the swarms of people who've nailed their professional colours to the Microsoft mast... They have an immense amount to lose if their cherished speciality is challenged - it really is professional Life & Death to them. Cognitive Dissonance comes into play and they have to fiercely reject any interloper/challenger and hunker down more solidly.

And it's demonstrated by our lending institutions - Venture Capitalists who want guaranteed performance, Banks who won't loan on anything but mortgagable assets, and Govt. Grants/Programs that foster innovation - but only if products are proven.

My analysis is these people are living the premise:
It's a far, far better thing to have done nothing than to ever make a mistake.

They live in a blame/retribution world - not one that seeks to learn and improve, where it's a given that bad things happen (out of your control) and people *will* make mistakes. Blaming is counter-productive - finding the root cause and fixing the system so it won't happen again does improve performance - perhaps it's the only way. [This is the 'Check-Act' part of Demmings' "Plan-Do-Check-Act" cycle.]

In the world of Outsourcers, this leads directly to "paint by numbers" operations - from a distance it doesn't look that different to real art :-)

What I'm looking for is a way to ally their fears and let them Look Good and Never Have to Admit Fault so they Avoid Blame at all costs...

That's not rational nor effective management - but we have to drag them kicking and screaming into the new world...

As an aside: I'm gone on record as saying MSFT will hit some sort of serious financial 'road bump' by 2010 - for many reasons. [Just look at Bill Gates, he's sold 140M shares in the last 2 years. If he believed in the c/o, he'd hold his shares]

When it does hit the road bump, it will be sudden and without warning (radical discontinuity):

Viz: IBM losses 1989/90 - record profits every year beforehand, and the Berlin Wall removal around the same time...

Ballmer and the other managers there don't have what it takes to handle that sort of Reality Check. If the owners allow Ballmer to stay on after the first shock, he will execute 'more of the same' and lock them into a death spiral (the first part of which will probably look like a recovery)...

The days of "nobody ever got fired for buying Microsoft" will be over...

MSFT products are too well entrenched to disappear - many people will walk away as quickly as they can, but I'd expect the software to become a 20-30% player...

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