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The Uniform Computer Information Transactions Act

http://www.ucita.com/

You're thinking of UCITA, which would have allowed the more execrable terms of EULAs to be enforced.

Currently UCITA has been enacted only in VA and MD.

Disclaimer: I am not a lawyer, nor do I play one on TV.

1) We don't know info what MS is gathering (so it's like we're letting the mechanic go through the glovebox on his assurance that he only wants to check the registration). And they can change what gets sent back at any time. And after the Media-Player-reports-what-DVDs-we-watch debacle, we've seen they have no problems spying on us - unless they get caught. But that's what encryption is for.

2) We only have their word that this is used anonymously - and there is nothing that precludes them from changing this policy in the future. RIAA has had pretty good success using IP addresses to sue people. I wouldn't be surprised to see MS go down the same road once they've finished picking the low-hanging fruit with this scheme.

3) If I had to show my car's registration before every tuneup, oil change or even refueling I'd start getting a little pissed off. This is not an extreme example. MS and other software companies dream of the day that their software phones home every time it is launched and they can turn it off at will. Look at what they're trying to get included with UCITA (http://www.ucita.com/)

4) Even though MS issued a press release, they're being sneaky. Check out the Windows Update site. If you choose "Custom" install, you get a message saying you should upgrade 'some components' to get all sorts of wonderful advantages from Windows Update. Only if you manage to spot the pale blue "Details" link (any lighter and it would blend into the background) will you find out that they're installing the Genuine Windows control. And it's irreversible - once installed it cannot be removed. If they're verifying this for my benefit, why must they be able to do it over and over again? Unless they have further plans for this nifty little utility.

I'm guessing that the immediate benefit for MS involves clamping down on shady PC makers and casual copiers. But for the long-term, this is setting up the infrastructure for subscription-based windows.

Well, look carefully at the ProCD ruling. (Again, IANAL, and even if I were this wouldn't be real legal advice) For example, see http://www.complaw.com/lawlibrary/procd.html.

As I read through the appellate court's reasoning, they seem to be saying that the knowledge at the time of sale that there is a license agreement, and that this purchase is subject to it, accompanied with the ability to reverse the entire transaction should the actual details of the agreement be unacceptable is sufficient to provide a EULA with enforceability. (Subject to the general things that would invalidate a contract, such as requiring one's first born in the fine print) A visible notice on the outside of the box saying "This software is subject to a license agreement which must be accepted before the software may be used" would be sufficient.

In your analysis, the relevant acceptance happened at the time of sale - you agreed to use the software only in accordance with whatever license agreement was inside, and to not use it if the terms inside were unacceptable.

Now, where I think current EULAs might get into trouble is that despite what the text of the EULA may say, you cannot in practice return opened software if you find the EULA unacceptable. Working this out requires more legal training than I have (none), but it may mean that EULAs are limited to what everyone expects EULAs to contain, which is a damn vague standard. (However, such a standard might throw out "no benchmarking" clauses)

Of course, if your state passes a law that explicitly delimits the scope and applicability of EULAs included in software sold over-the-counter, (e.g. UCITA) then that's a different matter.

The DMCA may have a loophole that makes this legal

It's not a "loophole", it's an explicit exception.
European law has a similar provision.

It's there for good reason: To promote competition and not allow DRM to be used for vendor lock-in.
(Current attempts notwithstanding)

What the DMCA does is prohibit circumvention of copyright-protection devices (e.g. "cracking"), unless it's done for interoperability purposes.

However, the EULA might prohibit reverse engineering no matter what. The enforcability of them are questionable, though. The UCITA act passed by some states is thought to make such clauses enforceable.

But I'm a bit sceptical, since a federal court found such a clause to be unenforcable in 1988 despite a Louisiana state law which allowed such clauses. I can't see why Federal law would not pre-empt the UCITA as well.

UCITA has become law

• Maryland
• Virginia

"Bomb-shelter" has become law
What is UCITA "bomb-shelter" legislation? UCITA "bomb-shelter" legislation is defensive legislation needed to protect a state's residents from being subject to unfair and overreaching provisions in UCITA even if the act has never passed in their state. As of 2002, West Virginia, Iowa and North Carolina have passed this kind of legislation. "Bomb-shelter" legislation narrowly protect software licensees from choice of law provisions that make UCITA the governing law of the contract or from choice of forum provisions that might select another state unrelated to either the vendor or the licensee as the forum for settling a legal dispute over the contract. One proposed version (New York) stipulates that only the laws of the licensee's state (i.e. the state with the "bomb-shelter" law) will apply in determining whether the license's terms are enforceable.
See AFFECT's "bomb-shelter" section:

• North Carolina
• West Virginia

States to WATCH
This state is one to watch closely because some UCITA activity has been reported. This could mean that important pre-legislative activity has begun.
Things you can do:
Contact your state library association to find out how you can help them. Educate yourself about UCITA's effect on libraries by visiting the Impact section.

• Arizona
• Delaware
• Pennsylvania
• Texas
• Utah
• Wisconsin

No legislative activity reported
Things you can do:
Contact your state library association to find out how you can help.
Educate yourself about UCITA's effect on libraries.
Review the ALA Washington Office Online UCITA Tutorial.
Keep your eyes open for workshops in your area at ALA mid-winter and annual conferences.
Request a workshop if you don't see one listed in upcoming conferences.

• New York
• North Dakota
• Ohio
• Oregon
• Rhode Island
• South Carolina
• South Dakota
• Tennessee
• Washington
• Wyoming

The most frightening alternative to this idea of liability is UCITA. It is one thing to debate who takes the rap for a catastrophe; it is quite another to prohibit the debate at all. For the US, UCITA will spell the end of consumer rights when it comes to computer software. If you haven't been by the Affect site, do it now and sign up - then get back to the debate you're now helping to keep alive.

Conclusion: in order to be "compatible" in the strict sense, we need paragraph 7 to remove the choice of law clause. We would also recommend that paragraph 8 be changed to say that copying, modification or distribution constitutes acceptance of the license, but we don't have to have that change to agree that the license is fully "GPL compatible."

So we have never allowed a license with a choice-of-law clause to be treated as fully compatible with GPL. Virginia is the worst of all choices, because that state has passed the UCITA law, which adds a whole new range of risks and burdens in the distribution of free software.

That's right, I actually did a little detective work! Not all of us Rednecks in Texas are gonna take this sitting down!! Small businesses (as usual) are going to get stomped on by this. And as a partner in a small business, I REFUSE to vote for any state representative who votes yes on these bills. And I'll get my family to do the same... Heck, around here that's half the county!! :-)

But seriously, here is the information promised. It won't allow direct linking to a bill, but go to this page and search for "Uniform Computer Information"

The Bills are:
House Bill 1785
Senate Bill 709

Now, concerned Texans, write your representative! And if you need help visit AFFECT.

Despite your opinion of the current status of UCITA, I think that it is far from dead. Take a look at this map to see where UCITA lobbying activities are underway. Check out anti-UCITA ucita.com. and pro-UCITA ucitaonline.com. It's still an issue that has to be followed or it'll take us all by surprise one day, by becoming the law of the land.

Ed

Many used book stores sell second-hand software, such as Half-Price Books here in Austin and it is legal, although they, the book store, do not seem to guarantee that the purchaser can get past the technical restrictions.

The DMCA obviously makes it illegal to circumvent technical restrictions to copying or distributing software, but the physical media (CD-ROM) can still be given away, donated, loaned to a friend, or given away, and the software copyright holder will usually have no legal means under copyright to prevent it (although software companies do of course often attempt technical means to prevent it with serial numbers, verification numbers, online registration, requiring the CD-ROM to be in the drive and such).

Another thing. In UCITA jurisdictions, software copyright owners may be able to get restrictive license terms enforced by a court, at least where the purchaser has access to the license terms before purchase. I do wonder though about whether federal preemption issues aren't raised by state court enforcement of UCITA licensing terms that works to restrict rights consumers have under copyright, such as those of first sale and fair use.

Ed