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The paper defending EULAs that he links to and quotes is more interesting than the article itself. The part where they explain (*cough*) why copyright laws are insufficient is particularly riddled with bias and newspeak.

Proponents of not using EULAs fail to recognize that most purchasers of mass market software have little knowledge of their rights under copyright law. Most of these customers have probably never heard of the doctrine of first sale, the doctrine of fair use, or section 117 of the Copyright Act.

Moreover, EULAs play an important role in curbing software piracy. Despite the attempts of software industry groups to teach the public that copying a software program onto a second computer is equivalent to stealing a second copy of the program, many people still confuse the ease with which one can copy with a right to copy.

EULAs inform end users that making extra copies is not permitted (except for backup purposes) and that the software publisher is serious enough about enforcing this point to provide a written notice.

I could go on and on picking at this piece of crap, but I think I'll save my bile for another time and enjoy the rest of the day.

Oh, and in addition to bullshit, there's one interesting passage that brings a sincere grin to my face:

Rather than relying on their own negotiating skills or knowledge of the relevant law, most users are better served by relying on the contract doctrine of unconscionability, the contract principle that agreements should be construed against the drafter, the copyright doctrine of misuse, consumer protection laws, and the intense competition within the software market to obtain advantageous terms in acquiring software. The personal computer software market has been particularly unforgiving of companies that try to license software on unreasonable terms. The information superhighway magnifies the negative public relations consequences for software publishers who are perceived as behaving badly; criticism on the Internet and on computer bulletin boards is swift, blunt, caustic, and spreads quickly. Software end users have even formed associations to monitor and influence the license terms offered by software publishers. As one user association official explained, "[l]icensing issues cannot be a barrier to accepting new technologies. If so, it's only the vendors who will suffer."

You don't seem to understand the impact of the UCITA. It is a law proposal that will exactly do that: put the magic in cellophane.

Short version of UCITA: The developer has FULL liability unless waivered by a shrink-wrapped license.

You're right, at the moment. But with the UCITA in action, your no warranty clause in the GPL would be overruled by law. Underestimating this is exactly the danger we're facing!

I've often heard that view espoused, however, I do not see any language in UCITA, or its predecessors CITA and UCC Article 2B that specify "shrink-wrap". That term does not appear in UCITA The terms I do see apply equally to all mass market licenses, whether they are read pre- or post-sale, shrink-wrapped or not, etc. (with one exception, below)

UCITA does 'firm up' some standards that were previously ambiguous or inconsistently interpreted. These include reaffirming a few principles of implied warranty, and weakening others. They also include reaffirming the inpplicability of outrageous terms in licenses. This has been interpreted variously as saying 'full waivers may be void' and 'full waivers are affirmed'. Whichever interpretations wins out, will apply equally to all mass market licenses.
The only clause I have seen that differentiates SWL from GPL is the refund clause for SWL which allows a right of refund, with or without cause, if the license was not available until after purchase. Some have taken to mean that SWL products are *only* liable for refund (a claim that is difficult to support in the light of the whole law: either Section 809 and similar sections may properly be waived by a SWL and GPL; or they are both equally unconscionable and void. I cannot read the refund clause as a privileged state of limited liability)

However, I am eager to learn. Here's the UCITA text in a variety of formats, and 48 legal articles commenting on the law. Please quote the appropriate text supporting your claim. Otherwise I may suspect you accused me of not understanding UCITA, when I've done my homework and you haven't.

I despise UCITA, but I feel that ignorant babbling serves our cause very poorly.

BTW, I think badsoftware.com is an interesting and site, but their slideshow is ambiguously worded on the SWL disclaimer. If you re-read it, you will find that it says the offensive disclaimers are allowed in 'shrink-wrap' (terms hidden until after purchase) licenses but NOT that such disclaimer can ONLY be exercised by an undisclosed license.


IANAL. I just invested time and effort before I made my comments. I trust you did, too, and that I will be reading a response soon

If it locks consumers into a licence like current ones, that basically sound more like a slum-lord rental agreement (no guarantee of service, and you don't own it either, and if you [your computer] gets sick because of it, it ain't their problem) then that's an argument I can make.

This is certainly part of it. UCITA would make EULAs much more enforceable. In its current form, it would probably even allow clauses such as those that prohibit criticism or public disclosure of flaws in the software. I would hope that such things would be overturned in court, but why let it get that far if we can fix it before then?

If all it does it prevent the "warez kiddies" from their little pirate cottage industry, as said elsewhere, then how can you be against that.

If that was all it did, then I'd have no problem with it, except that it would be redundant. What "warez kiddies" do is already illegal under current law, so there is no need for further legislation for that purpose. It would only serve to confuse matters.

Sure, some software may seem overpriced, but it is the right of the company to charge what they want for it, and it is your right not to install it. If you did without paying it, UCITA or not, you just broke the law.

The problem is not the price or EULAs in and of themselves, but the fact that UCITA seems to disregard current contract law and current consumer rights. Some of this is explained in the docs I reference below.

There are a bunch of letters and papers written by various lawyers, consumer organizations, industry groups, and others on this site. Might help you out to read through some of them. Most of them seem pretty well thought out and usually emphasize that one of the worst aspects of UCITA is that it is not based on current law and will cause a lot of confusion and expensive litigation. I think this one, this one, this summary, and this article by Lawrence Lessig were some of the most informative.

If it locks consumers into a licence like current ones, that basically sound more like a slum-lord rental agreement (no guarantee of service, and you don't own it either, and if you [your computer] gets sick because of it, it ain't their problem) then that's an argument I can make.

This is certainly part of it. UCITA would make EULAs much more enforceable. In its current form, it would probably even allow clauses such as those that prohibit criticism or public disclosure of flaws in the software. I would hope that such things would be overturned in court, but why let it get that far if we can fix it before then?

If all it does it prevent the "warez kiddies" from their little pirate cottage industry, as said elsewhere, then how can you be against that.

If that was all it did, then I'd have no problem with it, except that it would be redundant. What "warez kiddies" do is already illegal under current law, so there is no need for further legislation for that purpose. It would only serve to confuse matters.

Sure, some software may seem overpriced, but it is the right of the company to charge what they want for it, and it is your right not to install it. If you did without paying it, UCITA or not, you just broke the law.

The problem is not the price or EULAs in and of themselves, but the fact that UCITA seems to disregard current contract law and current consumer rights. Some of this is explained in the docs I reference below.

There are a bunch of letters and papers written by various lawyers, consumer organizations, industry groups, and others on this site. Might help you out to read through some of them. Most of them seem pretty well thought out and usually emphasize that one of the worst aspects of UCITA is that it is not based on current law and will cause a lot of confusion and expensive litigation. I think this one, this one, this summary, and this article by Lawrence Lessig were some of the most informative.

If it locks consumers into a licence like current ones, that basically sound more like a slum-lord rental agreement (no guarantee of service, and you don't own it either, and if you [your computer] gets sick because of it, it ain't their problem) then that's an argument I can make.

This is certainly part of it. UCITA would make EULAs much more enforceable. In its current form, it would probably even allow clauses such as those that prohibit criticism or public disclosure of flaws in the software. I would hope that such things would be overturned in court, but why let it get that far if we can fix it before then?

If all it does it prevent the "warez kiddies" from their little pirate cottage industry, as said elsewhere, then how can you be against that.

If that was all it did, then I'd have no problem with it, except that it would be redundant. What "warez kiddies" do is already illegal under current law, so there is no need for further legislation for that purpose. It would only serve to confuse matters.

Sure, some software may seem overpriced, but it is the right of the company to charge what they want for it, and it is your right not to install it. If you did without paying it, UCITA or not, you just broke the law.

The problem is not the price or EULAs in and of themselves, but the fact that UCITA seems to disregard current contract law and current consumer rights. Some of this is explained in the docs I reference below.

There are a bunch of letters and papers written by various lawyers, consumer organizations, industry groups, and others on this site. Might help you out to read through some of them. Most of them seem pretty well thought out and usually emphasize that one of the worst aspects of UCITA is that it is not based on current law and will cause a lot of confusion and expensive litigation. I think this one, this one, this summary, and this article by Lawrence Lessig were some of the most informative.

It stands for Uniform Computer Information Transactions Act.

Check out www.badsoftware.com or www.2bguide.com. Also, look at the bottom of the article for links. It even gives the e-mail address of someone to contact if you want to help.

such as this - if a company knows of a material defect in their product and conceals such to the consumer, resulting in losses to the consumer - said greedheads are liable under the higher standards of gross-negligence, recklessness, or even intentional tort, resulting in statutory treble damages or unlimited punitive damages in some cicumstances.

The greedheads are already well on their way to taking care of that little problem. Go read up on UCITA.

http://www.troubleshooters.com/ucita/

http://www.2bguide.com/nccusl.html

Here's a list of Infoworld articles on UCITA

You can find a whole lot more besides these by doing a Google search.

A number of individuals as well as organizations have expressed their opposition to UCITA. This includes industry groups as well as individual law professors.



Attorneys general don't all like UCITA either. For example, California's attorney general has critized and expressed opposition to UCITA. See
an excellent list of organizations and individuals opposing UCITA, including their comments on this page.



The de facto clearinghouse for legal briefs and position papers from all sides in the process is the "Guide to the Proposed Law on Software Transactions" provided by Carol A. Kunze.



Now that the National Conference of Commissioners on Uniform State Laws has passed the the UCITA, each state individually has to enact it into law. The best thing to do is to write to the Attorney General in your state, expressing your opposition to this law. Please couch it in terms of economic harm to industry. Remember that rants about free software probably won't win you friends in government.

A number of individuals as well as organizations have expressed their opposition to UCITA. This includes industry groups as well as individual law professors.

Attorneys general don't all like UCITA either. For example, California's attorney general has critized and expressed opposition to UCITA. See an excellent list of organizations and individuals opposing UCITA, including their comments on this page.

The de facto clearinghouse for legal briefs and position papers from all sides in the process is the "Guide to the Proposed Law on Software Transactions" provided by Carol A. Kunze.

Now that the National Conference of Commissioners on Uniform State Laws has passed the the UCITA, each state individually has to enact it into law. The best thing to do is to write to the Attorney General in your state, expressing your opposition to this law. Please couch it in terms of economic harm to industry. Remember that rants about free software probably won't win you friends in government.

Attorneys general don't all like UCITA. For example, California's attorney general has critized and expressed opposition to UCITA. See an excellent summary page.
The de facto clearinghouse for legal briefs and position papers from all sides in the process is the "Guide to the Proposed Law on Software Transactions" provided by Carol A. Kunze.
Now that the National Conference of Commissioners on Uniform State Laws has passed the the UCITA, each state individually has to enact it into law. The best thing to do is to write to the Attorney General in your state, expressing your opposition to this law. Please couch it in terms of economic harm to industry. Remember that rants about free software probably won't win you friends in government.

Check it out:
http://www.2BGuide.com/docs/riaa1098.html
I really doubt this will come to pass, at least I hope it doesn't, it seems there are A Lot of people aganst this, including 26 states Attorney Generals, including Iowa, where I live. (thank god :)
"Subtle mind control? Why do all these HTML buttons say 'Submit' ?"

By way of background (missing from the article from InfoWorld), UCITA was until recently the proposed UCC 2B. The proposal to add a provision to the Uniform Commercial Code to deal with software licenses was until recently a joint project of the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The proposal was so awful, and attacked by so many people (especially legal academics!) that the ALI pulled out. This is unusual.

NCCUSL historically is less likely to throw roadblocks in the way of a proposal once a drafting committee says it's done. On the other hand, this one is so controversial, for so many, many reasons, that there is a little hope that the steamroller can be stopped. Uniform Commissioners are political appointees, usually by state governors, so if you or your firm happens to have any pull in your state, a word to the (un)wise might help. Furthermore, even if it passes NCCUSL it then has to be adopted state-by-state, so there's another chance to fight it.

For my account of why an earlier draft was bad for e-commerce (the latest draft is bad in slightly different ways) see 2B as Legal Software for Electronic Contracting -- Operating System or Trojan Horse?.

By way of background (missing from the article from InfoWorld), UCITA was until recently the proposed UCC 2B. The proposal to add a provision to the Uniform Commercial Code to deal with software licenses was until recently a joint project of the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The proposal was so awful, and attacked by so many people (especially legal academics!) that the ALI pulled out. This is unusual.

NCCUSL historically is less likely to throw roadblocks in the way of a proposal once a drafting committee says it's done. On the other hand, this one is so controversial, for so many, many reasons, that there is a little hope that the steamroller can be stopped. Uniform Commissioners are political appointees, usually by state governors, so if you or your firm happens to have any pull in your state, a word to the (un)wise might help. Furthermore, even if it passes NCCUSL it then has to be adopted state-by-state, so there's another chance to fight it.

For my account of why an earlier draft was bad for e-commerce (the latest draft is bad in slightly different ways) see 2B as Legal Software for Electronic Contracting -- Operating System or Trojan Horse?.