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Comment To FTC On Software Warranties And UCITA
Bruce Perens writes: "The U.S. Federal Trade Commission is running a forum on software warranties and UCITA. This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors. It's of interest for proprietary software users because the warranties attached to software that you pay for are generally considered inadequate.FTC is soliciting written comments, the due date is Sept. 11. Full details on how to comment are here."
For several years I ran a firm that produced and sold industrial software with the following, money-back warranty -- and we were never asked for a refund. It is possible to write good software.
"Wester' Shore Technologies Ltd. warrants, for a period of 12 months from the date of delivery, that all computer programmes supplied by it as part of the 'Tool Kit' work in accordance with the intended functions as described in detail in the User's Manual. Should any purchaser demonstrate that the programmes do not perform as specified, Wester' Shore Technologies Ltd. will make the necessary programming changes within a reasonable time and at its own expense so that conformity to the User's Manual is achieved. This is offered to ensure customer satisfaction. If, for any reason this is not feasible, the customer may, at his option, return the software package in its entirety, and all copies thereof, to Wester' Shore Technologies Ltd. in exchange for a full refund of all monies paid towards the software license."
Morris Schneiderman
Bill - aka taniwha
--
Leave others their otherness. -- Aratak
This is a common misconception. But you don't have to agree to anyone's license to use software - not even MS's. Actually managing to use it may be tricky however.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Someone else gave a link to the text of UCITA.
Looking at that, section 406 (c) makes it utterly clear that a claim of "as is" or something similar to that (eg what the GPL does) is sufficient to disclaim all warranties except that of section 401. Section 401 only applies to information, not programs. (ie Software is in the clear, geographica databases are not.) And that can be disclaimed with words to the effect of, "There is no warranty against interference with your enjoyment of the information or against infringement."
Cheers,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
Here is the license and from a previous discussion, some of my analysis.
However when it comes to warranties, I am somewhat concerned. Term 5 explicitly says that you can use the software without accepting the license. Terms 11 and 12 are the disclaimer. What happens if Joe random user uses Linux, loses data because of a kernel bug, and then sues Linus saying that he had used the software but never agreed to the GPL as is his right (see term 5) and therefore had never accepted that Linus is not liable for any loss of data and business on his part!
What next?
Regards,
Ben
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
Which court decided that copying from one memory to another was infringing? Do you have any further information?
MAI Systems Corp v. Peak Computer, Inc, 991 F.2d 511, 518 (9th Cir. 1993)
I hope that's the proper way to cite a court decision, I'm just copying it from a text. Basically a third party repair company was barred from repairing computers running a certain OS because they had to load the OS into RAM to repair it - thus breaking copyright. This is similar to the Sega v. Acclaim case in which Sega claimed Acclaim violated their copyright in the process of reverse engineering because they must have made a copy of the software. Sega lost that one. Pretty lame methinks. I believe that the Copyright act of 1980 was ammended in 1998 to fix this stupidity, but I'm not sure if decisions after this date were saner.
Scuttlemonkey is a troll
Not quite sure what this means because certainly, there are no details worth talking about yet.
But instead of the status quo ("This software might do anything, and it's not our fault"), I can just see companies changing this to "This software might do anything, but, if used correctly, it'll do this"). Perfectly open, perfectly truthful, yet completely useless anyway.
Then, when Scandisk destroys your partitions (It's actually happened to me, somehow, no idea why) Microsoft will just stand up and say "well, the user obviously wasn't using the software correctly".
I see little change. It's legal mumbo jumbo.
--Remove SPAM from my address to mail me
Isn't it rather obvious?
If you pay $20K for a new car, you expect to get a working car. If it doesn't work, you have the right to repair, refund or replacement. It stems from the basic concept that your money should be exchanged for a good of similar worth.
If, on the other hand, I give you a car, you have no right to expect anything from it. It could break down in a mile for all you know, and there's nothing you can do about it short of giving it back or rejecting the gift from the start.
Anything gratis is a gift. Gifts are never warranted. (If they were, who would give toys to kids? ;-))
Argh! Whatever you think you know about the McDonald's "coffee" suit, it's wrong. It's been discussed before repeatedly on both Slashdot and elsewhere, so I'm not going to repeat it yet again here.
However, if you really want to believe that Rush Limbaugh and the like are the only ones with the guts (no pun intended) to report the "real" story - without all of the distracting "trivia" that the rest of us insist is important (like the fact that this coffee was served something like 20F hotter than at any other restaurant in town, or that the manager ignored multiple prior credible scalding compliants), then there's nothing I can do.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
Create a non-profit organization or two (or two hundred, for that matter) which will assume all legal responsibility for (some part of) free-{speech,beer} software. Such an organization will have a yearly budget of about, oh, $50.00 (I feel generous today). So some Joe Schmoe decides to sue such an organization, and it wents belly up. Who fscking cares? Another one will be created tomorrow.
If I were an American, I would do it today. But I'm not, so I leave this task to you.
One small personal request: if you do create such an organization, please name it FUNT. I can't make up a phrase that FUNT would stand for, so please do it yourself if you feel like it. May seem strange to you, but don't worry, it makes a perfect sense.
--
Industrial space for lease in Flatlandia.
Free Software must have warranty. And Commercial can get away with a shrink-wrap license? How the fuck does that work?
The message on the other side of this sig is false.
It seems to me that the IP laws are being designed these days to DISCOURAGE people from making their IP freely availible to the public. UCITA is a perfect example of this. Everyone knows that the average free software coder can't afford to give warranties for his/her software.
Another issue is that our government is getting ridiculous with its favoritism. It seeks to stifle one form of creation, coding, to protect another, dvd movies. The natural conclusion of such a mindset is to punish book authors because reading takes away time that could be spent consuming audio/visual media (rather than printed media).
It has been of course quite easy (and rightfully so) to be cynical towards modern representative democracy. Special interests control every aspect of the process of getting the leaders that we want or don't want into power. The media powers for all intents and purposes silence the 3rd parties by not allowing them to enter into televised presidential debates, big corporations control the funding of the political parties who are themselves the ultimate special interest group. Until we remove these kinds of road blocks the kind of IP reform we want will not be possible and things like UCITA will popup as often as new cases of AIDS in many of the unfortunate african nations.
Definitions for the IANALs.
license
A special permission to do something on, or with, somebody else's property which, were it not for the license, could be legally prevented or give rise to legal action in tort or trespass. A common example is allowing a person to walk across your lawn which, if it were not for the license, would constitute trespass. Licenses are revocable at will (unless supported by a contract) and, as such, differs from an easement (the latter conveying a legal interest in the land). Licenses which are not based on a contract and which are fully revocable are called "simple" or "bare" licenses. A common example is the shopping mall to which access by the public is on the basis of an implied license.
warranty
A guarantee given on the performance of a product or the doing of a certain thing. For example, many consumer products come with warranties under which the manufacturer will repair or replace any product that fails during the warranty period; the commitment to repair or replace being the "warranty".
contract
Contract An agreement between persons which obliges each party to do or not to do a certain thing. Technically, a valid contract requires an offer and an acceptance of that offer, and, in common law countries, consideration.
contract law
Contract law That body of law which regulates the enforcement of contracts. Contract law has its origins thousands of years as the early civilizations began to trade with each other, a legal system was created to support and to facilitate that trade. The English and French developed similar contract law systems, both referring extensively to old Roman contract law principles such as consensus ad idem or caveat emptor. There are some minor differences on points of detail such as the English law requirement that every contract contain consideration. More and more states are changing their laws to eliminate consideration as a prerequisite to a valid contract thus contributing to the uniformity of law. Contract law is the basis of all commercial dealings from buying a bus ticket to trading on the stock market.
Source: Duhaimes Law Dictionary.
Keeping
The UCITA is a worthless, unconstitutional piece of legislation. I recommend people look at the illegal search and seizure clause in the 4th Amendment and then look at the UCITA's provision for businesses to revoke ownership rights to software.
Not only that, it stands in the face of Chapter 2 of the U.S. Code, Title 15, Chapter 2 which deals with the Federal Trade Commission and unfair business practices.
I quote from Section 45: Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful. Surely, the software lobbies pushing UCITA through various state legislatures without public debate is somewhere on the order of deceptive. From the same section: No order of the Commission or judgement of court to enforce the same shall in anywise relieve or absolve any person, partnership, or corporation from any liability. What then is this blanket protection of commercial software houses which allows these companies to sell products that do not function? I have recently found out that a major university purchased a particular room scheduling program. However, this program does not function at all in any capacity related to room scheduling. On top of this, the programmers have no sense of security measures - the program is a steaming pile of useless electrons. Under UCITA, the university that made the purchase can't sue the software house for not delivering a program that should work within a reasonable frame of functionality. And that, my friend, is false advertising ( See Section 55 ).
Software companies should not be allowed to masquerade under false pretenses. From Section 69e: the Commission may require whenever such name is used in setting forth the information required by this subchapter, such qualifying statements as it may deem necessary to prevent confusion or deception. Products should function as they are described, and if not, then the description should be changed to match the functionality. The UCITA destroys the liability a company has to produce a product that works within certain specifications by covering companies with an anti-litigious umbrella.
I would recommend that the respective legislatures and the FTC remember who they are beholden to, and to remember that this country was not founded to support a plutocracy. There are plenty of other dictatorships the world throughout to handle such a form of government.
Actually, it's not yet known whether the GPL will legally be considered a contract, a copyright license, or both. This was discussed in the article linked from a recent Slashdot story.
:-)
So, the GPL may be affected by UCITA. Of course, the GPL disclaims warranties, so it's in the clear in that respect.
Still, the death of free software would almost be worthwhile if it meant Microsoft had to comply with strict software warranty laws.
This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors. It's of interest for proprietary software users because the warranties attached to software that you pay for are generally considered inadequate.
i.e. Giving warranties is a good thing, except when I have to do it.
UCITA will not give rise to new warranty obligations. Much confusion is created by the word "license." UCITA is contract law, and when it refers to a license, it means a contract. OTOH, the GPL* is a different type of license - a copyright license. The mere act of person A writing and releasing a piece of open-source software, and person B using that software, does not form a contract. Therefore neither A nor B is subject to the provisions of UCITA. Even if somehow A was found to be covered by UCITA, section 406 expressly permits the disclaimer of warranties. The GPL* includes such a disclaimer, so A is off the hook. *Note: this also applies to other popular open-source licenses like the BSD, X, and Artistic licenses.
-------------------- Hmmm... what does this button d
This is far from "perfect," but it's the best I could manage.
------------
1. Personal Background--I am the Internal Systems Administrator for a small internet company in Austin, TX. Our business both consumes and produces software, so I am very familiar with the issues at hand. In many instances, I have to evaluate software for purchase so warranty regulation is a concern for me in the workplace. Additionally, I use a computer at home and software reliability is a concern there as well.
2. In the interest of intellectual honesty, I should disclose that I believe the notion of "intellectual property" is patently absurd (pun intended). However, as current law is based on said notion, this response will address the issue as given. Eben Moglen, attorney for the Free Software Foundation, http://fsf.org, and Professor of Law and Legal History at Columbia Law School, has written an excellent paper on this very subject at http://emoglen.law.columbia.edu/my_pubs/anarchism. html.
3. Occupationally and personally, I am very involved with Free Software. Typically, licenses for such software disclaims warranties of any sort as the authors usually give the software away including human-readable source code (e.g., http://www.fsf.org/copyleft/gpl.html). The authors of such software often have neither the legal expertise nor the financial backing to warranty their software. Rather, they give the source code itself away as a replacement for a warranty. The source code gives the consumer the ability to examine for herself whether a given program is reliable and well-engineered. If the consumer is not capable of reading source code, or is simply too busy to do so, she has several options available. Many Free Software projects have homepages, mailing-lists, and large numbers of current users. It is not difficult to find information on the reliability of the software, even if forced to email the original author (which is sometimes the case if the project is a niche project of interest to only a few people).
4. Additionally, many companies offer "support" (telephone help-desk support, specially tested packages of Free Software, security auditing, custom software development, etc.) for Free Software (e.g., http://www.redhat.com, http://www.linuxcare.com, etc.), even though the software itself is not warranted. This suggests that the companies are confident enough in Free Software such that they may reap profits from unused support.
5. It could be argued that these companies would want the software to be shoddy so that more consumers would pay for support. However, this view ignores the fact that support companies are more like insurance companies: they are there when you need them. Legality aside, it is not in the best interest of a medical insurance company to pay ruffians to maim their customers in order to drive up demand as the payout for each claim is significantly higher than the loss of demand for medical insurance. Similarly, it is significantly cheaper for a support company to pool its resources into providing good software in the first place rather than providing costly telephone or emergency source code-level support.
6. While it still might seem that Free Software is more likely to need warranting against ill-effects than proprietary software, one need only witness why many Free Software projects arise in the first place. Often, a proprietary product that fills a particular niche is unstable, less than featureful, or generally not well-supported. An industrious coder will want to "scratch that itch," so to speak, and starts a project to create a free alternative. The Linux kernel, http://linux.org, SAMBA, http://samba.org, and many other Free Software projects are good examples of this. Linus Torvalds was unhappy with the sad shape of consumer operating systems available for his lowly 386 and set out to create an alternative kernel to run on the tools created by the GNU project, http://gnu.org. SAMBA exists due to users unwilling to run an unstable operating system or pay insane amounts in licensing fees simply to serve files to others still using legacy proprietary systems.
7. In essence, Free Software exists in part due to market failure. Instead of wooing customers with good products and good service, many proprietary software sought to lock consumers into their products and intentionally implanted incompatibilities to force customers to upgrade or be left behind, less able to effectively communicate with their partners who were licensed newer versions. Unwilling to sacrifice money or features to these ingrates, coders like Torvalds opted to create their own software and license it in such a way that it couldn't be coopted by unfaithful companies. Although Linux did not come along until 1991, the aforementioned GNU project was founded by Richard Stallman in the Eighties to combat the same sorts of tactics used by the old Unix vendors before the advent of the near ubiquitous consumer desktop.
8. Consequently, it is only because of negligent proprietary software vendors that laws requiring software to be warranted appear necessary. Not surprisingly, they are the same people pushing bills like UCITA which require nominal warranties on software as they are betting they can have Free Software effectively outlawed. In exchange for their granting of nominal warranties to consumers, they demand draconian rights such as legal remote removal of so-called "pirated" software. If this sort of government-corporate collusion is allowed to pass, then I am moving myself and my tax dollars elsewhere.
9. Lastly, many Free Software projects are collaborations involving individuals in many different countries. It would seem the height of folly to require them to follow stringent legal requirements, such as those detailed in UCITA, for distributing their products in the USA. As foreign coders cannot be expected to understand the vagaries of English legalese, they would have to hire a US-based attorney to review the warranty on their product. One can imagine the likelihood of that given the cost of such attorneys. It would be a shame to lose foreign contributors as, unlike in many physical object trade disputes which affect trade deficits and surpluses, software cum source code increases the intellectual wealth in all countries involved.
10. I would like to thank the FTC for allowing citizens to comment in such a convenient format as email. Hopefully, all such government agencies will one day be able to gather direct feedback from the citizenry so easily.
--
Stephen Waters
Austin, TX
Help cure AIDS, cancer, and more. Donate your unused computer time to worldcommunitygrid.org. Join Team Slashdot!
My preferred warranty:
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
What about undefined constructs in the language?
Then it is guaranteed to operate in an undefined manner. How simple is that?
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
Slashdotters really must learn that, to make things better, they should take time out of their day and put pen to paper and write to their elected officials.
Hell, it doesn't even take a full-blown letter campaign, just the thoughts of a few concerned citizens. You must realize that for every letter you write, you counter the efforts of a corporation plus some (you are not only a concerned individual, you are also a constituant and a voter).
If the corp. decides to bring out the big gun lobbyists and big $$$ contributions, that weakens you but you should use the opporitunity to bring in your friends and associates and fight harder.
Have you ever put your name on one of those internet petitions? I have. But in reality, if I was a Senator or the cabinet I would put as much weight on two or three written letters from my constituents as I would on a net petition, even if it was signed by 500 or 5000 and printed out on HP laser jets and sent FedEx. The letter really has that much more weight.
Its time for the bitching and rhetoric on these /. boards to stop. Specifically, the "Why don't things change?" bit. The energy can be much better spent influencing the people that matter, rather than convincing our own brethren of the obvious truths and blatant injustices we see more and more often in the /. news these days.
So, write the FCC, write to your elected legislators to change the laws, and have a nice day.
1. Be polite. The last thing we need is for representatives' mailboxes to overflow with hundreds of YOU SUCK FOR VOTING FOR UCITA!!! messages.
2. Speling counts (pun intended). We want to present the impression of responsible, concerned people who are worried about how this law may affect them. a bunch of peoplz riting like this wil get no responses. We don't want to make the impression that the opposition consists only of crackers and 14-year-olds.
3. Almost without a doubt, someone will post an example letter showing the correct way of showing your opposition. Use this, but don't copy it word for word. Hundreds of identical letters will inevitably be dismissed as a campaign. Be unique and your voice will count.
4. State the facts. Using plain english, explain why this bill is bad. No technical terms, no hyperbole, and no distortion of the facts. We have enough evidence that there is no need to make something up, and the negative results from that could be devastating.
5. And again, be polite. I've said it once before but I'm saying it again, in order to get it thoroughly drilled into people's heads. I cannot stress this enough.
Friends don't let friends misuse the subjunctive.