UCITA Special Privileges for Software Makers
|January 9, 2007||Posted by Staff under Archive, Progress Report, The Progress Report|
Special Privileges for Software Makers
UCITA Would Harm Quality, Giving Unfair Protection to Fraud and Incompetence
Every one of the state legislatures in the USA will be under pressure during the year 2000 to approve a recommended rule called UCITA. This rule would give software makers new privileges and would strip users of rights, including the right to sue, in many cases of fraud and other injury.
One chilling example — imagine an outside company disabling your entire computer network because it mistakenly suspects you of using a copy of its software illegally. You would not be able to sue for damages!
The mainstream media have failed the public by not covering the UCITA issue. We can do much better.
Here is the best explanation we have found about UCITA. There’s much more material about this terrible, anti-freedom, anti-consumer, anti-competition, unAmerican rule, if you click here.
Background on UCITA
by Cem Kaner
The Uniform Computer Information Transactions Act (UCITA) is a 350-page proposed new law. It will govern all contracts for the development, sale, licensing, maintenance, and support of computer software, plus most contracts for information (such as books) in digital form. Vendors of other products that contain software, such as computers, can also bring their products within the scope of UCITA, rather than Article 2 of the Uniform Commercial Code, a law that is much friendlier to consumers and small businesses.
In various forms, UCITA has been under development for about 12 years. For the last four years, it was called Article 2B and was drafted as a proposed amendment to the Uniform Commercial Code.
The strength of UCITA is that it creates a uniform law governing a wide range of transactions. It unifies the laws across the states and it resolves some differences in legal treatment of computer-related services and sales/licensing of packaged software.
The problem with UCITA is that the drafting has been dominated by lobbyists for software publishers. The drafting committee is independent of these companies and is trying in good faith to write a decent bill. But committee members (and its chair) have repeatedly expressed the belief that the bill cannot pass without the support of The Industry, and The Industry (trade associations lobbyists) has repeatedly threatened to withdraw its support if this or that position was not written into (or kept in) the draft law.
Dont get us wrong about this. Weve worked in the software industry (usually as managers) for most of our adult lives. We appreciate NCCUSL’s enthusiasm for protecting America’s fastest growing industry. But when a legislative drafting committee lets itself be too heavily influenced by a single industrys lawyers, the result is a law that is just too imbalanced. Over the past four years, we (and many others) repeatedly proposed compromises or alternatives that we believed were win-win solutions. The results were negligible. Look at our detailed analyses of September 1996 (part 1, part 2), October 1997, December 1997, August 1998, October 1998 and November, 1998. The same issues came up year after year, with no genuine progress, year after year.
There are many analyses in the articles, and we encourage you to read them. But to give you a taste, here are just a few examples of the rules under UCITA:
- Suppose you buy a computer game. When you’ve finished playing it, suppose that you want to take it off of your computer and give it to your sister. Under the law today, this is just like buying a book or a record — you can’t make a copy to keep for yourself, but you can give away the one that you bought or you can lend it to a friend or sell it used. Under UCITA, the publisher can say you can’t sell the software used, lend it or give it away. Book publishers tried to restrict post-sale reselling of books a century ago. A feisty little retailer called Macy’s took them on, and the United States Supreme Court invalidated these restrictions. UCITA’s grant of sweeping new intellectual property rights to mass-market sellers is one of many reasons that the main American library associations oppose UCITA.
Suppose your new computer game doesn’t work. You call for help. The software company charges $3 per minute to talk to you. After half an hour ($90), you realize the company won’t help you. You ask for a refund and return the product. Under UCITA, the company can send you the $40 you paid for the game but keep the $90 you spent on the phone call. You’d have been better off throwing the game away. This is one of many ways in which UCITA lets software companies avoid responsibility for their defects, even for defects they know about when they sell the product. Even for defects that they know about and choose not to tell the customer about. Many software developers believe that this rule threatens the professionalism of their work. It is one of the reasons that the main developers’ professional societies (including the Association for Computing Machinery and the Institute for Electrical and Electronic Engineers) oppose UCITA or have expressed serious concerns about it. Similar opposition comes from quality control professionals.
Suppose that a software company demonstrates a product at a trade show. You order the product at the show. The product you receive has different screens, is harder to use and less capable. Today, when a software company demonstrates a product, it creates a warranty that the product you get will be the same, work the same, and have the same capabilities as the one demonstrated. UCITA eliminates this warranty for the display layout and commands and cuts it back for functionality.
Backers of UCITA insist that it leaves consumers and small businesses with our existing rights, and gives us new ones. But it doesn’t. That’s why every consumer advocate we know (including Consumers Union and Ralph Nader’s Consumer Project on Technology) has called for termination of the UCITA project. A July 9, 1999 analysis by the Federal Trade Commission points out that UCITA allows software companies to place “restrictions on a consumers right to sue for a product defect, to use the product, or even to publicly discuss or criticize the product.” The analysis concludes, “we question whether it is appropriate to depart from these consumer protection and competition policy principles in a state commercial law statute.”
Thanks to Cem Kaner for permission to share this material. You can find a lot more on this corrupt, monopolistic rule at www.badsoftware.com
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