Fighting UCITA

On Oct. 1, UCITA will become law in Maryland (Virginia passed a version of UCITA too, but delayed the effective date of the law until July 1, 2001). Infoworld has an article about Iowa considering "bomb-shelter" legislation to protect Iowans from UCITA-based laws passed in other states, and offers a few helpful hints for software purchasers. My suggestion is this: don't buy software from any UCITA-state company, or any national company whose licensing says you are bound by the laws of a UCITA-state. There's simply no reason to take risks like that.

Comments

Fighting UCITA

[Alien Perspective]

How? There's the usual legal channels (slow).

But there's something interesting about UCITA, the idea that someone can be held to a "clickwrap", or "shrinkwrap" when the usual contractual element of "meeting of minds" may in fact not be present.

Send a 6 year old into a s/w store to buy a copy of "Learning to Read v1.0". If they have the cash, the store will certainly sell the s/w, but did the kid read the shrinkwrap? What if (obvious in this hypothetical) they can't read?. Were they *legally competent* to agree to the terms? Can the store clerk make those determinations?

I suggest that many of us who operate web sites put up notices: "by entering this web site (beyond the main page) you agree ..."

• To pay $10,000 per SPAM sent to anyone on this domain
• To pay $1M for the privilege of adding addresses in this domain to your net-filtering "blacklist"
• To release the owners of this website from all previous shrink/clickwrap agreements on commercial products previously entered into by the person browsing and/or their employer.

If a "clickwrap" agreement can be made to stick, then stick it to them!. We have a lot more of the web than they do, they must agree to our terms to access it.

And our terms should be to make UCITA onerous, so that it's tossed out.

Re:civil disobedience

[panda]

Any better ideas?

Yes. Only use Free Software. That is the ultimate in civil disobedience, refusing to go along with the game of market economics as applied to software, where such economics do not strictly apply.

Before you condemn, RTFB

[Bob Kopp]

Before anybody else automatically condemns the State of Maryland for approving a bill with the words "Uniform Commercial Transaction Act" in its title, perhaps they ought to read the actual text of the bill the General Assembly passed. (What, Slashdotters read primary sources? God forbid!) The Maryland General Assembly has a page with the text of the bill; amendments are also available seperately if you just want to see what the subcommittees that worked diligently on the bill for two months changed.

A brief discussion occured on the bill after its Maryland passage at TECHNOCRAT.NET. People might also be interested on what Del. Kumar Barve, chair of the House subcommitee that examined the bill, had to say:

As I am sure you know, the House of Delegates approved a heavily amended UCITA bill. There seems to be a great deal of confusion regarding this amended version.

The House Subcommittee on Science and Technology held ten open public work session attended by both opponents and proponents of the bill. Many suggestions which came from these work sessions were incorporated into our final version.

Currently, there is no current federal or state statue that applies to computer software licensing. However, twelve court cases have upheld shrinkwrap licenses and there have been no court cases to the contrary since 1993. By passing UCITA, consumers will now be allowed to get their money back if the product does not work as advertised or was purchased in error even after having loaded on their computer. Our amended version of UCITA also makes it clear that Maryland consumer laws apply to consumer computer transactions. Specifically, the Maryland version of UCITA prohibits software licensors from modifying or disclaiming implied warranties of merchantability.

Current law allows a company to disable software in home or business computers. Under UCITA, this practice is outlawed on home computers by our consumer protection laws and is heavily restricted in the commercial market.

Many of those concerned about the bill believe it gives software vendors control over your files and data. Under our version of UCITA, your data is your property.

The provisions do not change the law with respect to copyrighting and reverse engineering. UCITA explicitly states that all aspects of federal copyright law govern computer information transactions. The legislation also makes it clear that state trade secret laws and unfair competition laws are in full force and not overridden by UCITA.

Kumar Barve
Chairman,
Subcommittee on Science and Technology

I'm not saying that the Maryland law is perfect, just that you ought to know what your talking about before you express an opinion.

Bob Kopp

Re:Before you condemn, RTFB

[Col. Klink (retired)]

Perhaps before defending the MD UCITA, you should read the article...

Under UCITA, this practice is outlawed on home computers by our consumer protection laws and is heavily restricted in the commercial market.

As the article points out, you're only a "consumer" if it's for personal use and explicitly *excludes* commercial/professional users.

Read the article for more little nasties that slipped past the MD legislature.

But is it legal?

[Snaller]

The notion here where i am, Europe, is that all these "You just agree to these terms before installing" or whatever, are not in themselves LEGAL. ie, they can put all kinds of crap in there, it doesn't absolve them from the real law, nor does it put any additional burdens on you the clickee.
But who is reading this? Even in the US? Is it 1% of people who actually read those acres of mumbo jumbo. (Even Carmack in a post on slashdot indicated his belief that nobody really read that stuff). Can a company in good conscience claim they have a "deal" with their customers when said customers don't read it because they believe it is their property since they have payed money for it.
Some people then say, that you don't buy the program, you "license" it - that i also think is slightly suspect. Hell no, i don't license it - I BUY A COPY. Its mine - go away!
Hmm..i wonder if it would work with other products You don't buy a car, you license it.. and agree never to run a red light, speed or look at girls while in the car! (You break the rules they come and take it back)
Or the license agreement for this DVD says you must behave properly infront of the TV while you watch it, so no fondling the wife!

Hmmm, i wonder if there is a future in being a "i agree" clicker. Ie, Person A has shelled out hard earned cash for a new program, he then calls person B. Person B comes over, installs the program and click on the "I agree" button and leaves again. Person A now runs the program without having agreed to anything, eh? *G*


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Re:civil disobedience

[wafath]

Simple. Return policies.

The UCITA gives you the oportunity to return software that you don't like the license agreement for. So go into your local Best Buy (which has a no-return policy on opened software), buy something, open it up, and return it to Best Buy demanding a full refund. Get lots of your friends to do it too.

Target a particular company, say microsoft, to purchase things for. Have a specific complaint about the license agreement. (like demanding arbitration only or allowing the company to remotely disable the software.) It is far less effective if you target non-noxious EULAs. (Like the old Borland "like a book" license.)

It's legal. It will piss of Best Buy, and it will send a message.

Furthermore to make things really interesting insert a piece of paper into each package you return that looks like it came with the software but really didn't. Write on it "You have just purchased a used piece of software. I hope you didn't buy this as new.".

Then you can turn around and sue the chain for selling used merchandise as new merchandise.

Have fun!

W

UCITA won't last.

[Black Parrot]

I don't expect the UCITA laws to last very long.

We mostly portray UCITA as software companies vs. consumers. But when it comes down to it, it's a way for big software companies to shaft other companies, including smaller software companies.

Further, my limited experience with jury duty leads me to believe that the vast majority of lawsuits in the USA are suits between two companies, rather than a suit between a consumer and a company.

The net result is that a few very powerful software companies have set themselves up to shaft all but the largest companies in the state (who will exempt themselves by buying under a non-shrinkwrap contract). Small businesses cannot afford to operate under the conditions imposed by UCITA, and it happens that small businesses have enormous political clout in the USA.

I suspect that we'll soon see some suits against UCITA companies from small businesses, at which point either the UCITA will be found unconstitutional and struck down, or else the small businesses will be told that the law requires them to bend over and learn to enjoy it, at which point a sort of grass roots movement with much more clout than we geeks have will come into play, and state legislators will earn a spot in Guiness for their astonishing speed at backpedaling.

States are smart to want to appeal to big high tech industries. But what will they gain if the rest of their businesses move to Iowa? Someone in Iowa deserves kudos for figuring this out.

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Upcoming events...

[dominion]

If anybody's looking for a good day to protest UCITA (or even out-of-control intellectual property rights in general), I would recommend May Day, on May 1, 2000. Chances are, if you're near a relatively large city, they're going to be having a May Day celebration.

The focus of May Day is going to be anti-globalisation/anti-corporate rule, with an emphasis on labor rights. UCITA ties in with this because most of these bills are meant to help out a few corporate interests despite screwing people (I refuse to call people "consumers").

I, personally, would love to see an anti-copyright contingent at one of the mayday celebrations.

Here's a couple links for you:

http://www.mayday2k.org - Has a list of which cities have celebrations planned, as well as links to the history of May Day and contact information.

http://mayday.indymedia.org - The same autonomous collective that brought you independant coverage of the Seattle and Washington D.C. anti-globalization protests will be helping to cover May Day around the world.

Even if you're not interested in protesting, I'd recommend you check May Day out anyways, since it should be just an all around fun time.

Michael Chisari
mchisari@usa.net

Re:Upcoming events...

[dominion]

I feel that these people have a very small world view. I just don't understand them.

Unfortunately, you're showing to have a very small world view, yourself.

Why corporations? Why a totalitarian, heirarchial organization where all the wealth and power ends up in the hands of the few at the top?

Why not worker-run and worker-owned cooperatives? Why not community initiatives? Why not open source? Corporate involvement in open source software was after-the-fact. People created it first, and then corporations got into it in order to make money.

There's no reason that cablemodem access couldn't be provided by a cooperative or a collective as opposed to a corporation. There's no reason that different collectives and cooperatives around the world couldn't work together towards the common goal of international access. Voluntarily cooperating towards a common goal... Sound familiar?

Another thing to remember is this: I write code for a living. No, I'm not digging ditches or putting up drywall. Am I still a laborer? Yes, I am, and I still care more about other laborers than I do CEO's and stockholders. The working class creates the wealth, the employing class merely consumes it.

And furthermore, a lot of people who are going to be at Chicago May Day are going to be day laborers. You know, guys who make $3.00 an hour to work in fields with pesticides being sprayed on them? Do you think that they shouldn't be fighting for better wages and more rights?

It's very easy for a privileged upper or middle class male to say "find another job!" but for the other 90% of the world, it's not that easy. Go to Haitian sweatshop workers and tell them to "find another job!", or to Guatamalen bean pickers (who picked the beans for your StarbucksTM coffee), or to young Indonesian boys who make soccer balls for Nike. Better yet, go to an inner city, where the average McDonalds gets 12 applicants for each open position, and tell people there to "find another job!" How do you think those people would feel?

Do your best to think outside your own personal sphere of understanding. There's a lot of serious, serious crap going on out there, and to ignore it, and call those who address it as "silly" is, in many ways, an act of criminal negligence.


Michael Chisari
mchisari@usa.net

Trampling on our rights

[scriber]

With all the obvious opposition to laws such as the UCITA and the DMCA so evident in places like Slashdot, it's a wonder to me that people haven't stormed the Washington Mall demanding that their rights cease to be trampled on. Perhaps the reason for it is the same that made the Clinton Impeachment trial so much of a non-issue. America's economy is better than it's ever been, and no law maker wants to take responsibility for a crash by making the wrong decision.

In this case, Maryland wants to keep software companies happy and ensure that their economic success continues even more. Consumers are apathetic to a blatant loss of their rights because they too are blinded by economic boom. Americans have become content with the status quo, and see little reason to protest "business as usual" in their state capitals when everything has so far been working out so well.

The only way the American people will become concerned enough about this and other loss of rights will be for them to lose their contentment and realize what's actually going on. Until then, these grevious errors in our lawmakers' judgement will continue to go relatively unopposed by the general public.