Slashdot Mirror
Software Licensing, 2001
A bit of background for readers unfamiliar with the process: The Uniform Commercial Code is a body of law which is enacted, pretty much identically, in all 50 states. The object is to have a similar business environment for the basics of commerce, so that neither buyers or sellers are blindsided. If the law is fair, both buyers and sellers benefit from uniform expectations about basic commercial transactions.
But of course, laws evolve. The Uniform Computer Information Transactions Act began its life as an amendment to the UCC, but it was so unbalanced in favor of software companies that one of the initial sponsoring organizations dropped out, and it could no longer be considered a UCC amendment. Yet it lives on.
UCITA legitimizes heinous license restrictions in software, actively promoting the worst software practices. Should it pass, the very concept of "used software" (video games, etc.) will disappear, since that can and will be prohibited by licensing terms. Better sell your Funcoland stock. Badsoftware.com has many more examples of how UCITA legitimizes things that big software companies only dream of today, such as prohibiting reverse engineering or even criticism of their products.
As you read this, UCITA is being pressed in states across the country, starting with those where the software industry giants have the most highly-paid lobbyists. Virginia appears to be one of the lead states, and is considering the bill right now in committee. By this time next year, UCITA is likely to be the law of the land. This may seem to be somewhat dry reading, but if you ever use non-GPL software or purchase a computer in the future, this is what you can look forward to. -- Michael Sims, michael @ slashdot.org
Cem Kaner writes:
The August 30th, 1999 issue of the National Law Journal carried an article favoring the Uniform Computer Information Transactions Act. I protested to the Journal about the bias of the article and was invited to write a response, but the inviting Editor left the Journal shortly thereafter, and my response was never published. The claims made in that article, which was written by the Chairman of the UCITA drafting committee and two of his colleagues, are being (and will continue to be) repeated to legislators who are considering the Act. Perhaps your readers will find this rebuttal of interest.
[Editor's note: the pro-UCITA article referenced above is available at http://test01.ljextra.com/na.archive.html/99/08/1999_0822_61.html.]
I grant permission to any reader to recirculate or publish this article, so long as it is attributed to me and published in its entirety (including endnotes). If you are recirculating or publishing it, please let me know.
THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT
In the August 30th, 1999 issue of the National Law Journal, Carlyle C. Ring, H. Lane Kneedler and Gail D. Jaspen presented the proposed Uniform Computer Information Transactions Act ("Uniform law for computer info transactions is offered"). Mr. Ring chaired the drafting committee that wrote UCITA.
UCITA is a proposed law that will govern all transactions involving computer software, electronic databases (such as WestLaw), downloaded books, and some entertainment products. It can also apply to computers and some other goods if their manufacturers put an appropriate notice in the product packaging.
Although the Ring et al. article reported years of work on UCITA as a proposed Article 2B addition to the UCC, it failed to mention that the UCC is a joint project between the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). It failed to mention that the ALI called for "fundamental revision" of the draft in May, 1998 (1) and withdrew from the project in April, 1999, effectively killing 2B as a UCC project. Thereafter, NCCUSL renamed the project as UCITA and went forward alone. The ALI members of the Article 2B drafting committee refused to join the UCITA drafting committee. (2)
Although authors Ring, Kneedler, and Jaspen acknowledged that UCITA is a controversial proposal, they listed only its supporters and not such opponents as the Attorneys-General of 24 states, the Bureaus of Competition, Consumer Protection, and Policy Planning of the United States Federal Trade Commission, the leading software developers' professional societies (such as the Association for Computing Machinery, the Institute of Electrical and Electronics Engineers, and the American Society for Quality, Software Division), software trade groups representing small developers (the Independent Computer Consultants Association, the Free software Foundation), the five main library associations, leading intellectual property experts (including the American Intellectual Property Law Association, Committee of Copyright and Literary Property of the Association of the Bar of the City of New York, and fifty intellectual property law professors), other copyright industry associations (such as the Motion Picture Association of America, the National Association of Broadcasters, and the Newspaper Association of America), and every consumer advocacy group that has looked at the bill. (3)
UCITA will have profound effects on intellectual property rights and the quality and security of computer software.
INTELLECTUAL PROPERTY
Under UCITA, almost all software-related transactions will be licensing transactions. When a consumer buys a copy of Microsoft Word and a copy of a book about the program, the software transaction would be a license while the book transaction is a sale, even if the two items were side by side, the customer bought them both from the same cashier, and the software license was not available to the customer until after she paid for the product and took it away. Under UCITA 102(a)(42) a transaction can be a license even if the licensee is given title to the transferred copy.
This is a shift from long-established treatment of intellectual property in the mass market. To see the history of this issue in copyright law, shepardize Jewelers' Mercantile Agency v. Jewelers' Pub. Co., 155 N.Y. 241 (1898) (rejected the fiction of a lease offered to all comers that restricted transfer of the book and use of information in it); Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908) (rejected a restrictive notice on a book that prohibited the buyer from reselling the book for less than a minimum price. Under the first sale doctrine, publisher lost its property interest in an individual copy of a book once it sold that copy. The restrictive notice could not transform a sale into a license); RCA Mfg. Co. v. Whiteman, 114 F.2d 86 (2d Cir. 1940) (Licensing language on record albums could not convert a mass-market sale into a license.) For patent law, look at the doctrine of exhaustion, starting with Motion Picture Patents Co. v. Universal Film Manufacturing Co. 243 U.S. 502 (1917).
According to authors Ring, Kneedler, and Jaspen, "UCITA is intended neither to avoid nor to contradict the large body of existing federal intellectual property law." Others vigorously disagree. For example, the American Intellectual Property Law Association (4) protested to NCCUSL that UCITA "eliminates the 'first sale' doctrine" (which allows the owner of a copy to sell it or give it away). Under UCITA 503(2), "a term prohibiting transfer of a party's interest is enforceable, and a transfer made in violation of that term is a breach of contract and is ineffective." A vendor who puts a no-transfer clause in the license achieves a market-wide restriction -- equivalent to elimination of the first sale doctrine. By allowing vendors to enforce such restrictions in the mass-market, UCITA allows them to evade the federal balancing of private and public rights in intellectual property.(5)
Reverse engineering is another example of the intellectual property reach of UCITA. Reverse engineering is a normal engineering practice.(6) Clauses barring reverse engineering have been enforced in negotiated licenses, but not in mass market cases.(7) Some software publishers want to ban reverse engineering in the mass market. Despite authors Ring, Kneedler, and Jaspen's claim of UCITA's neutrality on this issue, UCITA makes contractual use restrictions (no-reverse-engineering is a use restriction) prima facie enforceable. Individual courts might rule that such a restriction is invalid under federal law or against public policy, but it will take several expensive court cases before software developers will know whether they can still lawfully reverse engineer mass-market software in the face of a shrink-wrapped contract term that claims that they cannot.
The AIPLA letter noted that "The President of . . . [NCCUSL], Gene Lebrun, wrote . . . that it is 'expressly stated in Section 2B-105 [that] Article 2B does not displace or change intellectual property law.' . . . We are extremely concerned that the proposed UCITA draft is not consistent with . . . the assurance of President Lebrun." UCITA Reporter Ray Nimmer complained of "distortions" in the debate on UCITA, identifying as a "misrepresentation" "that UCITA allows licensors to prevent licensees from commenting about the products. This allegation makes nice copy and superficial impact, but is simply untrue. You can scroll through the UCITA draft and will not find any such provision." (8) Opponents quickly point to UCITA section 102(a) (20), which defines "contractual use restriction" as "an enforceable restriction created by contract which concerns the use or disclosure of, or access to licensed information or informational rights, including a limitation on scope or manner of use." Section 307(b) states that "If a license expressly limits use of the information or informational rights, use in any other manner is a breach of contract." Under the statute's own definition, a nondisclosure clause is a contractual use restriction. Under Section 307(b), such a restriction is enforceable.
These provisions may keep vital information from the marketplace. Consider the following restrictions, downloaded (July 20, 1999) from www.mcafee.com, the website for VirusScan, a mass-market software product, on July 20, 1999.
"The customer shall not disclose the results of any benchmark test to any third party without McAfee's prior written approval."
"The customers will not publish reviews of the product without prior consent from McAfee."
Clauses like these are enforceable in traditional, negotiated licenses, and they are used to block magazine reviews.(9) UCITA arguably extends the enforceability of such clauses even in mass market products. Perhaps they will eventually be found to conflict with public policy but until then, the plain language of UCITA will have a chilling effect on criticism of mass-market products.
SOFTWARE SECURITY
UCITA section 816 allows software vendors to place disabling codes in software and to activate them remotely (such as by sending an e-mail) to shut down a customer's use of the product.
Such disabling codes create a hole in the customer's system security. UCITA section 816 remedies for wrongful use of such codes are probably not triggered if the software is shut down accidentally or by a third party (such as a cracker who learns the code or a disgruntled former employee of the vendor).
Self-help was portrayed in the UCITA meetings as something essential to protect the interests of small licensors. However, the only group attending the UCITA meetings that represents only small licensors, the Independent Computer Consultants Association, urged NCCUSL to reject self-help. It recommended that licensors be protected without creating the disabling code security risk to customers by statutory authorization for recovery of attorney fees by licensors who obtain an injunction to terminate misuse of the software. This proposal was repeatedly rejected.
CONSUMER PROTECTION
UCITA is hostile to customers of all sizes. It validates post-payment presentation of material terms and permits licensors to put in a form contract a term that allows them to keep changing terms. Licensors can exclude incidental and consequential damages even when an agreed remedy fails of its essential purpose. The drafters rejected proposals from the software engineering professional societies (ACM, IEEE, and ICCA) to allow customers to recover damages caused by defects that were known to the licensor but not documented or disclosed to the licensee. Instead, the standard form exclusion of incidental damages allows the licensor to charge a support fee (such as $5 per minute on the telephone) when a consumer calls to complain about a defect that was known by the licensor when it licensed the software. Software products are often sold in the mass market with hundreds or thousands of known defects. (10) For additional detailed notes on consumer impact of UCITA, see the articles in the note. (11)
Authors Ring, Kneedler, and Jaspen say that "UCITA alters no state laws relating to the applicability of consumer protection to databases, consumer services or software." In contrast, 24 Attorneys General and the Administrator of the Georgia Fair Business Practices Act said that UCITA's "rules deviate substantially from long established norms of consumer expectations. We are concerned that these deviations will invite overreaching that will ultimately interfere with the full realization of the potential of e-commerce in our states." (12)
The Attorneys General also said that UCITA's "prefatory note and reporter's comments incorrectly present the proposed statute as balanced and as leaving 'in place basic consumer protection laws' and 'adding new consumer and licensee protections that extend current law.' . . . [I]n instances in which provisions are described as new consumer protections, such as the contract formation and modification provisions discussed below, consumers actually have fewer rights than they do under present law. . . . NCCUSL . . . should revise the explanatory materials accompanying the statute to scrupulously identify the instances in which the policy choices embodied in the statute either extend or resolve controversies in current law and to clearly explain whether such extension or resolution favors sellers/licensors or buyers/licensees."
NOTES
(1) Jean Braucher, "Why UCITA, Like UCC Article 2B, is Premature and Unsound", UCC Bulletin, July 1999, www.2BGuide.com/docs/0499jb.html.
(2) (www.2BGuide.com/docs/50799dad.html).
(3) See www.badsoftware.com/oppose.htm and www.2bguide.com.
(4) Letter to NCCUSL, July 16, 1999.
(5) Robert P. Merges, "Intellectual Property and the Costs of Commercial Exchange: A Review Essay," 93 Mich. L. Rev. 1570, 1613, 1995; Mark A. Lemley, "Beyond Preemption: The Law and Policy of Intellectual Property Licensing," 87 Cal. L. Rev. 111,1999, http://papers.ssrn.com/paper.taf?abstract_id=3D98655.
(6) Cem Kaner, Article 2B and Reverse Engineering, UCC Bulletin, November, 1998, 1, www.badsoftware.com/reverse.htm.
(7) Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988). "Correcting Some Myths About UCITA", http://www.2bguide.com/docs/rne.html
(8) "The Test That Wasn't" August 1999 PC Magazine 29. According to that article, Oracle "formally declined to let us [PC Magazine] publish any benchmark test results."
(9) Cem Kaner & David Pels, Bad Software: What To Do When Software Fails.
(10) Federal Trade Commission letter www.ftc.gov/be/v990010.htm; Steven Chow (a member of the UCITA drafting committee) "Proposed Uniform Computer Information Transactions Act: Bad For Commerce And Innovation" www.2bguide.com/docs/citopp.html; Cem Kaner, "Comments on Article 2B" (section-by-section analysis) October 1998, www.badsoftware.com/kanerncc.htm; "Bad Software: Who is Liable" (analyzes software economics and UCC 2B) May 1998, www.badsoftware.com/asqcirc.htm; and
(11) "Article 2B - Report from the November 13-15, 1998 Meeting", www.badsoftware.com/uccnov98.htm.
(12) Letter to NCCUSL, www.badsoftware.com/aglet1.htm and www.badsoftware.com/aglet2.htm.
This stuff isn't property. The name "intellectual property" was invented by lawyers trying to create a permanent monopoly right out of a bargain made by the state for the good of the people.
If the people don't like the bargain (and I don't) then it must be abolished. Increasing levels of piracy is a sure sign that the people, and therefore the state will soon end this bargain and return to the common law principles which prevailed prior to the introduction of Copyright.
Moaning about the "artists need to protect their work", is missing the point. We have more artists than anyone can think of a use for, so why encourage more of them? And worse more Media Companies and Agents and other parasites who don't provide any value in a world where the means of distribution is in the hands of the people.
Government protection for industries which have outlived their usefulness is wasteful and inevitably doomed to fail. If the music industry can't provide more value than my mate Dave with a CD Recorder, why am I paying them $10 more? It certainly isn't going to the "artist" who created the music...
If you are an artist and want my money, ask for money - don't whore yourself to a huge megacorporation so that they can bully me into paying $5 on the cent for your work. Why would I respect someone who does that?
PS Yeah, I write software, and my friends are in bands. I do not pirate
software, but I want a new deal, and an end to the bad Copyright bargain.
When they came for the warez kiddies, I did not stand up, because I don't copy software.
When they came for the hackers, I did not stand up, because I don't reverse engineer software.
When they came for the code kidz, I did not stand up, because I don't crack software.
When they came for me, there was no one left to stand up.
This is not a good thing. Something like this only keeps technology from progressing. The software industry should (and perhaps someday will be) handled more as math and sciences are. Information should not be bogged down by licenses. What if math equations and scientific ideas could be patented and licensed. Society as a whole would not be as advanced as it is if I had to pay every time I wanted to add. Of course science is at times commercialized but it seems that people perceive science as something which must be free.
What needs to be done is to sway people's notions of software towards that of a science. People must be convinced that software is like math, something which can help mankind only if it is not comlpetely restricted.
Doing nothing about it isn't an option.
Giving up a freedom may seem easy. Gaining that freedom back, after it's gone is a complete bitch.
Howsabout when everything is regulated to the point that you cannot do something you want or need to do without buckling down and submitting to such claptrap as UCITAS or something similar?
Sure, YOU have the luxury of saying "I ain't gonna us it", but what about others who don't have the same luxury?
I understand the sentiment. I'd dearly love to see these bastards stewing in their own juices. Unfortunately, the damage they'd do on the way down is unacceptable.
Something like this needs to be FOUGHT. Not avoided.
Chas - The one, the only.
THANK GOD!!!
Chas - The one, the only.
THANK GOD!!!
First, everyone remember that UCITA is not Federal legislation; it's a recommended addition to the UCC, which means that it must be passed at the state level.
While this means that we haven't lost yet, it makes fighting the thing a real pain, as we have to do it at each and every state legislature.
Back on track.... Cem did a dead-on critique of the proposal last May. I saved it, and everyone interested should read it, as it's very, very, good.
Cem's critique of UCITA
UCITA sucks all over; it's one of the few pieces of legalese that I've seen that has absolutely, positively no redeeming qualities.
-Erik
There are always four sides to every story: your side, their side, the truth, and what really happened.
You write your representitives. Had written on paper is generally best, then typed letter and signed, then phone call. Lest best is email. Not sending a letter means you don't care and are ignoreable. Remember when you are writing this up, clearly state your opinion and support it. Also do it in a calm reasonable manner. Never use personal attacks either against your representitive or others. Who knows your representitive or one of the staff may like the perons you attacked and dis your letter.
US House of representitives: clerkweb.house.gov
MN Government: www.leg.state.mn.us/leg/legdir.htm
Those are the two ones I have book marked. Can others fill in the rest or point to a site with them all indexed.
Does anyone (EFF, ACLU, some other acronym, whoever) have a petition online against UTICA, clearly stating the many points in this article? Is there a list of people to contact, preferably with recommendations not to flame? i can't see how this could stand up in courts (IANAL), but it would certainly be easier and less expensive to combat this before it can become law.
The big corporations behind this have the money, the lawyers, and the lobbyists to push their views. We have the Slashdot Effect, if we can only figure out how to use it.
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perl -e'$_=shift;die eval' '"$^X $0\047\$_=shift;die eval\047 \047$_\047"' at -e line 1.
I'd be interested to know, if such a bad law went into effect, would it still be legal to do the reverse engineering in another country, and then use the data gained from that to develop another proudct in the US itself, or if the product would even then be legal in the US.
This appears to be just the latest part of an ongoing effort by software publishers. Obviously, constant vigilance is necessary.
And the brethren went away edified.
I think you can't find a better incensive for people to use OSS. First, it kills the "who's accountable is the software crashes" argument. And let's face it, piracy (call it what you want) is good for software vendors, as people copy the software at home, and then buy it at work. If it were totally impossible to copy software, much less people would be using MS Office right now.
Now the choice will be:
1) Pay a lot for a closed source without any guarantee that it works correctly, risk having it disabled from the outside because you weren't nice with the company. And even then, you're not even free to use it as you like.
2) Download (or buy for $2) Open Source Software, do whatever you like with it (modifying it if you like) and then give it to your friends, your brother and your dog.
I guess the next step to this law is having to call the vendor to ask permission to use the software when you need it... or paying per minute fees for use of the software. The more abuse from closed source software vendors, the more good it will do to OSS.
Opus: the Swiss army knife of audio codec
First off, these laws are passed on a state by state basis. If some states decide to not play ball, then things get very messy. For example, people will just reverse-engineer the product in one of the states that didn't join this stupidity. Or it would be done in other countries.
If the laws were passed and then they tried to actually enforce them, there would be such a huge consumer backlash that it wouldn't even be funny. Just wait until people try to sell their used game at the local swap meet, bookstore, or whatever and get told it's against the law for them to sell something they bought. I can smell the anger already.
Then of course there would be the movement to OSS based software. I for one do use a number of Microsoft products, and I'm an MCSE to boot. (Oh no! He's E-vil!) I like OSS and Linux, but I'm not rabid about it. However if something like this law went into effect, I WOULD become rabid about it. Hell, I'd start coding free stuff just to help bury the companies that were trying to take advantage of these laws.
Then of course there are the big time consumers. The government and the corporations of the world. Most of them aren't going to waste time with stupid licensing either. They'll say 'screw you' to the software venders and code in-house, use GPL'd and OSS stuff, or get it from companies that don't succumb to the stupidity. Big companies and such don't care as much about the initial expense of a product as individual users do since they write it off of their taxes as an expense, but they do care greatly about security (backdoors), future costs (how often do they have to upgrade and such), quality of support, and things like liability concerns, which would be huge for these types of licenses.
What it sounds like to me is that a few companies and some lawyers have decided that they can make a lot more money if these laws go into effect. Their greed and one sided view of things has blinded them to certain realities. It always amazes me the level of stupidity that such self-delusion can lead to. Just like Circuit City and their DIVX concept, they'll wind up salting their own ground.
In the US, minors (under age 18) cannot enter contracts (well they can, but they can bail out at any time and the other party has no recourse). So, when I need a copy of PhotoShop, Word, or whatever, I give money to my kids and they make the purchase and they install it on their computer, which they graciously allow me to use. No enforcable EULA's here! Tee hee!
Mr. Kamer's article offers an excellent argument, complete with citations to various findings of law to back it up. I had no such background when I wrote my editorial, By Reading This Article, You Agree to Subscribe to This Magazine for 25 Years . If you're interested in a philosophical (as opposed to legal) background into why shrinkwrap "licenses" are ethically indefensible and should never be taken seriously, I hope you might do me the privilege of reading it.
Schwab
Editor, A1-AAA AmeriCaptions
Lets see.... we have Colt, Ruger, Winchester, Mossberg, etc... Ow, let go.... OW, hey now... Um, that hurts... I dont wanna go for a ride... It was just a joke! I'm not armed! Really! OW!
Reverse engineering copy protection schemes for the sake of "compatibility" needs to be stopped. This loophole will always be able to be exploited because there always is some platform mainstream media will always leave out. This means that all schemes will be cracked, and with this loophole the crack could be legal. A new law is necessary. Copy protection schemes are necessary in order for artists and companies to protect their work in the age of high speed internet connections.
This argument is seriously missing the point. You might as well argue that people should be prevented from driving to work because of the chance that someone will get drunk, drive, and kill someone.
Basically, you want to punish all of the law-abiding citizens who are LEGALLY working towards compatibility for no other reason than to attempt to prevent a few from breaking the law.
The fact that you clearly miss is that there are already laws in place to address piracy. Just as you don't punish every driver to stop the drunk, you also don't punish the law abiding that reverse-engineer to stop the pirate.
The pirate is already breaking the law, and won't give a shit that he might have to break another one (your argument for outlawing reverse engineering), in order to further his goals. Your suggestion would only hurt those who actually OBEY the law, thus further engendering a greater amount of disrespect for the law.
Your suggestion is no different than those who support claptrap like the CDA. In both cases, there already exist laws on the books to effectively address the criminal behaviour in question, and it is unnecessary (and IMHO, criminal) to punish or otherwise curtail the rights of people who engage in legal behaviour.
If you are truly worried about piracy, address the piracy, don't go after the messenger.
Nunc Tutus Exitus Computarus.
Cem's excellent, albeit one-sided critique raises serious points about industry practices. What he doesn't do, however, is to explain how UCITA is different from the present situation. Upon analysis, the answer is: "not much."
Present shrink-wrap and click-wrap agreements either are or are not binding. Anti-reverse engineering provisions, and the other provisions, either are or are not preempted by the Copyright Act. All of Cem's parade of horribles provisions can and often are already written into commercial shrink- or click-wrap agreements. UCITA, enacted as state law, might change some uncertainty (there isn't much left) as to the former, but certainly not the latter (its still either preempted or it isn't). The courts presently treat licenses that say so as licenses of software, not sales of a copy.
The creation of a contract through X-wrap agreements isn't completely settled, but the only Circuit Court case directly on point seems to have held them to be contracts, the only question remaining being whether particular provisions are enforceable under public policy, contract law and applicable federal law. UCITA would resolve any uncertainty left on this issue, but IMHO, UCITA is far better for OSS than the status quo in this regard.
At the center of most OSS projects is the license. Never signed on paper, rarely even clicked for, the GPL or other OSS license. The hereditary provisions of GPL would be reinforced, not weakened by UCITA. While never tested, the status of GPL's "include-file-wrap" agreement would be reinforced, and given meaningful teeth. This would be better, not worse, for the OSS community.
My suggestion is to read the UCITA carefully, and consider the arguments made on both sides. The software industry engages in a number of practices we all find questionable and wrong-headed, but a law that incidentally continues to permit enforceability of the same things presently permitted is not a bad thing for that reason.
If the marketplace truly despises a term or practice, the industry will adapt, or competitors will exploit this. At the end of the day, things will change. Copy-protection, code-wheels and the like went the way of the ak in package products long ago for precisely that reason. If these provisions matter to customers, things will change. If they don't, they won't. In the meanwhile, don't buy a product with a license you don't like -- that is YOUR choice. If you open the license and decide you don't like it, return it -- that is YOUR choice. Instead, use the OSS alternatives, and enjoy true freedom. If there isn't an OSS alternative, write it yourself.
On the other hand, consider the extent to which UCITA will strengthen the hand of those of us who are producing OSS software. While I am presently neither fan nor foe of UCITA (I also find it heavy handed in some ways), I think on balance it offers far more of use to the OSS community concerning enforceability of the interesting OSS license terms than it actually withholds from our use of non-OSS code. In practice, it doesn't really change much that the bad guys don't already do to us. On the other hand, it does give corporate lawyers further reason to counsel caution to their clients when asked how to sneak around, say, the GPL.
This is a good thing.
Okay, I'm not the first one to point out that UCITA certainly won't hurt open source. It doesn't effect, and can't effect our model of transactions where nothing is hidden. I would even argue that a shrink-wrapped packaging of open source software that tried to limit the rights of the purchaser in any of the ways that UCITA would allow would not be open source. It would undermine the reputation in the open source community of the company selling it.
This brings me to my first point, which is best summarized by the word reputation, although it is broader than that. There is an interesting book that explores the value of reputation in ongoing relationships, Order Without Law by Robert C. Ellickson. The author explored the interaction of farmers and ranchers in Shasta County in situations involving both open and closed range laws. He discovered that the law made no difference. They lived by an iron-clad rule: neighbors don't sue neighbors. These were people who expected to have ongoing relationships with each other for years to follow. They settled their disputes by other means.
David Friedman also explores this in his upcoming book Law's Order: An Economic Account . He cites examples of communities that manage to achieve remarkable efficiencies through arbitration outside the courts and reputation. His commentary on the interaction of economics and law sheds a great deal of light on both subjects. For anyone interested in a thoroughly considered libertarian perspective on them that is not based on natural rights, I recommend his books. His web site has the complete contents of a couple of them along with selected chapters of others and many articles.
So what does this have to do with UCITA? Yes, it will be possible for companies to create draconian license agreements. But there are limits set on how bad these can get and which conditions they can enforce. Companies that have created de facto standards will have more control than small upstarts. With market share comes the power to marginalize small customers and market segments. But the contents of the license agreements will become widely known. And they are part of the purchase price. Software that I can't resell used costs me more than the same software that I can get $10 for in a couple of years when I'm done with it.
The little upstarts can undercut the market leaders even more effectively if they have the option of selling under a less restrictive license that doesn't hit them in the bottom line. They can sell at closer to the premium price and be more permissive in the use of their software. This already happens without the additional restrictions that UCITA makes possible.
As for open source software, we have the most open license conditions short of public domain. If you don't want to live with the restrictions of the licenses on commercial software, you turn to open source. If the commercial licenses get more restrictive, that will make them less appealing. One of the fundamental concepts of economics is that people enter into transactions voluntarily because they expect to gain from them. The bottom line is that both parties to the sale must expect to be better off because of it. That sets an upper limit on the price and other conditions that the seller can set. And it sets a lower limit that the buyer can expect.
Another fundamental concept of economics is that most of the interesting activity happens at the margin. Pretty much every value in the study of economics has a corresponding marginal value. It is essentially the slope of the curve for that value at the current point the economy is at. In the case of the relationship of supply and demand, I am talking about the marginal demand. It answers the question of how much the demand will rise or fall with a small change in the price. As I pointed out, the price isn't just the number that appears on your receipt. It is the aggregate of the value of all of the terms. How many customers an overly restrictive license will drive away depends on two things. The first is the customers' evaluation of the cost of the terms. The second is the customers' demand curve. The terms of the license are under the control of the supplier. Everything else is in the hands of the customers or the competition.
UCITA is not a good thing. In fact, it may set conditions that violate the traditional idea of the conditions required to establish a valid contract. That is a legal issue I can't answer. But as I have pointed out, I think it may lack the teeth that some suppliers want and most detractors fear.
The net will not be what we demand, but what we make it. Build it well.
WHAT?
Yes. That's right. This could be a "good thing".
Take your finger off of the -1, troll and listen for a minute. Than mark me down all you want. I'll say my piece even if it is against Slashdot doctrine.
The ability of these companies to write and enforce such bizarre procedures only makes it easier for us to choose software. In this age of the internet, where we know more about a product before it hits the store shelves than the manufacturer does, laws like these quickly become a moot point.
If a software is not a sale, but it is, instead, a license, then it's something I can't give away for Christmas. Good enough for me.
If I can't reverse engineer it, fine. Reverse engineering may be legal but you still have to go to court next week just to point that out. Meanwhile Apple steals a GUI from Xerox, has it stolen by Windows, and then yells at Stardock over a lookalike skin? Since when has the letter of the law even mattered? Etoy still doesn't have a web site and Nestle is still hawking baby formula. The world goes on.
Put more restrictions on software. I just won't buy it. I'll stick to Linux or whoever else writes a reasonable sales/license agreement and smile.
If software can be turned off from a remote location, it does not need to be installed. Companies who do this save me money, because I don't see the need to spend money to install a backdoor onto my PC.
Honestly, it makes my life simpler. I don't need to worry about who has a better deal, Amazon or eToys or Nestle, because I won't buy their products.
Why fight against stupidity? Do you really think that the companies we respect (such as Redhat) could keep our business if they did this? No. Obviously no. You may bring up things like DeCSS but be real, one of us will be watching Star Wars, Episode One this year and it's won't be on your DVD player. The big music producers who want copy protection aren't the label for my favorite bands. Most of my favorite bands have CD's with sticky labels.
In short. Let them have their laws. I am not their customer. Their laws do not affect me.
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No Zen is good zen
We're now installing Quark on the G3s that my school newspaper uses for production work. Each licensed copy of Quark comes with a "dongle", a little piece of plastic that goes between the keyboard and the Mac (sort of like an adaptor that doesn't actually adapt...)
.5-increment-upgrade licenses to buy, no cheap plastic pieces to break or lose. And it works better than commercial junk!!! And there is none of this crap like "Our tech. support line is a 900 number, but if your product is still under warranty, you'll be refunded the charge". Gee, thanks HP...my school DOESN'T ALLOW DIALING 900 numbers (hmm, I wonder why), even with a long-distance code. Thank heavens your printer hasn't broken yet.
I've seen us buy 3 different OS revisions of MacOS in the past year, for each of the computers. I consider this a travesty...especially considering the very slight changes made between levels (which basically affected our operation not at all, except that it was needed for bug fixes and to keep compatibility with software, like Adobe Photoshop, of which we've also bought more than one revision in a year).
If vendors can already charge you more money every few months for software that still doesn't do everything it's supposed to, imagine how bad things will be if they pass a law like this...then we'll have to pay every month.
With Debian, if I want to use something, I apt-get it or compile it. If I hate it, I delete it. If I like it, I can use it as much as I want, and get bug fixes whenever they come out (much better for security than if I had to wait 2 months for our Purchasing Dept. to clear it!!!). If I have some spare time and feel skilled enough, I can even try to fix any problems with it, or add new features that I would find useful. If I need help, I go to my local newsgroup and have a solution quickly. All of this is free. There are no
I understand that there is still a need for extremely complex software like Quark, and that free software does not yet fill this niche. However, we have already seen what software companies will do when given an inch...we can't afford to give them 2. At least, as a student organization, WE can't afford to.
WMBC freeform/independent online radio.
Your rights, such as they are, are outlined in the license agreement that you accept. If you do not accept the license agreement, you have no right to use the software. If you use it anyway, you are a felon. This crime is far worse than rape or murder, because it strikes at the heart of the system of natural incentives which drives our free economy. Any "rights" that the vendor chooses to grant you are gifts, pure and simple, and you certainly have not earned them. The vendor has sunk millions of dollars of capital into developing the product. They have every right to expect a return on this investment, and the fact they are generously allowing you to use the software at all is more than you probably deserve. Your role in this culture is to pay them for the work performed by their employees, who are damned lucky to have jobs (and almost certainly don't appreciate it). Pay up and shut up.
These "rights" of the "consumer" are like the "rights" of women or animals; it's an absurdity on the face of it. Slashdot has no business wasting our time with this leftist garbage. It says up there "News for Nerds. Stuff that matters." Is that what this is? Decidedly not. Competent "nerds" (technical people) are by definition conservative Libertarians, for two reasons: First, they are productive individuals and the principle of rational self-interest proves that they will not support the socialists. Second, they are by definition intelligent and logical people (they work with logic all day, do they not?) and therefore they cannot be fooled by liberal myths and nonsense like so-called "heliocentric" cosmology, "evolution", or the redistribution of wealth (organized coercive parasitism). A leftist nerd is a contradiction in terms, and therefore cannot exist.
First off, a lot of people are worried about what we as Slashdot veterans can do, and naturally, they're worried that we don't have the numbers or the influence to do anything. I don't think we really need to be too worried. I am willing to bet that most major corporations are not going to want to buy software that opens up their security systems. As much as software is needed, no company wants another company to shut it down, and they'll step up their lobbying efforts.
Second, consumers will never be able to understand the idea that what they paid for is not theirs. When I pay for my software, I am paying for my physical copy of it, not for the right to use it. That's how I see it. That's how the majority of Americans will see it. Trying to convince them of any other way of seeing it will probably get you labeled as a Communist (not that Communism is bad; Americans just think it is).
A lot of the talk of licensing is real interesting given the nature of software developments these days. Both Microsoft (as evidenced in their press release today) and Sun advocate going to a server-centric system, where you wouldn't buy a huge office bundle, but would rather get something akin to a connection to a server that would then serve this program to you. In that case, you really are buying permission to use the product. Transactions do become about licenses. The consumer really does lose quite a bit of control over the software that he is using. Right now, MS can't cut off my access to Office 2000, but in the future they could (provided they are still around).
And finally, why stop at software? I mean, this could be used much the same way in hand-held devices. Rather than owning it, you lease it, and if you don't pay, they send a signal somehow and shut it down. I mean, that may actually be beneficial. Rather than paying $200 for a device, I pay like $2/mo. or something and when it stops being useful, I just stop paying and they shut it off. I don't own the now piece of junk and if someone else wants it, they can pick back up the fee. But I digress.
But like I said, I don't see this bill as making it past the rest of big business unnoticed. This bill just isn't friendly to the lowly consumer; it's also not friendly to the big corporate consumer, and they carry just as much weight as the software industry.
My feelings about UCITA are that it imposes such horrifying terms on customers that many businesses will turn to open source software to protect themselves.
Given a choice between having software that can be remotely turned off on any pretext a licensor might wish to cite, and having stable software which legally cannot be taken from them, which would a prudent business choose? One imagines the latter.
It will only take a few cases of this sort of behavior to convince businesses to either turn to open source software or build their own software in house. Either way, commercial closed source houses will lose out.
I can, however, imagine closed source vendors guaranteeing never to use the UCITA remedies available to them, as a part of their contract with customers. It may be the only way to keep customers if these laws take effect.
"I'm a scientist! I don't think, I observe!" - Dr. Clayton Forrester