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Comments To FTC On UCITA Due Soon
Luyseyal writes "Comments to the FTC regarding the Warranty Protection for High-Tech Products and Services forum are due by September 11. This was originally mentioned here on Slashdot in June. I've submitted my 2 cents to the FTC on UCITA. Have you?"
Congress mandated that any company that chooses to give a written warranty on a consumer product must follow some basic ground rules ... designed to ensure: that warranties for consumer products be clear and understandable; that warranties not become vehicles to disclaim or otherwise restrict substantive consumer rights provided by state law; that warranties be available prior to sale so consumers could know the warranty terms before buying the product and could compare the warranties of different sellers; and, that sellers and manufacturers honor the terms of their warranties. Finally, the Act gave consumers the right to sue for any violation of the Act, including breach of express or implied warranty.
Software and Other Computer Information Products and Services
Today, many of the issues that were important three decades ago in the context of written consumer product warranties are being debated in the context of mass market "shrinkwrap" or "clickwrap" software licenses. For example, software licenses may be written in technical, or otherwise complicated language that some consumers might find difficult to understand. Additionally, just as written warranties prior to 1975 were sometimes used to disclaim substantive implied warranty protections provided by state law, some of today's mass market software licenses contain provisions that seek to disclaim similar state-implied warranty protections (e.g., fitness, merchantability). Moreover, some mass market software licenses may not be available for consumers to review until after the consumer has paid for the software. Thus, consumers may be unaware of the terms and conditions until after the product is purchased.(3)
In seeking public comment and holding a public forum, the Commission hopes to facilitate discussion of how government, private industry, and consumer advocates can work together to ensure that consumers receive adequate information when purchasing software and other computer information products and services. Additional concerns include how to ensure that consumers are able to retain existing protections afforded by state law and compare warranty protections when shopping for software and other computer information
In other words, it is vitally important that UCITA not pass and that the FTC know how upset the consuming public is over this corrupt legislation.
3. Many of these issues have recently been debated in the context of the drafting of a proposed state law, drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL). That proposed law, entitled the "Uniform Computer Information Transaction Act" (UCITA), would, among other things, affirm the enforceability of mass market software licenses. Many of the provisions of UCITA, including the provisions dealing with mass market licenses, have raised concern among some consumer groups and law enforcement officials, including the staff of the Federal Trade Commission.
My preferred warranty:
WARRANTY
The accompanying software is guaranteed to operate in exact accordance with the source code provided, under condition that it is compiled using an error-free compiler and executed on bzrp error-free hardware.
Thanks Brett
This post is (P) Public Domain. Any sources quoted are "fair use" and retain their original copyright.
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.
thanks harmless
bzrp
UTICA is certainly a relevant issue, and it's even identified as one. Why would comments about it not be taken seriously?
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On a side note, Virginia's Joint Commission on Science and Technology is holding meetings regarding UCITA. Here is the schedule. The next one is in Lynchburg VA on September 12. The next one is at George Mason on October 17.
This is your opportunity to let the people in charge know.
I met with Senator Emily Couric along with two other folks from the Virginia Piedmont Technology Council on June 6th. I posted a report to the peacefire-technical list afterwards. Here's what I wrote, verbatim:
From: Waldo L. Jaquith <waldo@waldo.net>
Date: Tuesday, June 6, 2000 3:59 PM
To: peacefire-technical@iain.com
Subject: Results of Meeting With Senator Emily Couric Re: UCITA
I thought you'd be interested to know how my meeting with VA Senator Emily Couric went. I sat down with her and Josh Chernila of the VPTC and Colin Learmonth from BNSI and talked for about an hour this afternoon.
Essentially, Emily was wholly unfamiliar with UCITA. This is not a criticism -- she has 3,000 bills put before her every year. This is a fairly esoteric one, although it obviously impacts all of us strongly.
She'd done her homework the previous night, and had a thick packet of pages she'd printed out from various UCITA-related websites. We explained to her some of UCITA's impacts, but tried to keep things simple. Our message was basic: UCITA makes digital contracts binding while offering no real limitations as to what the contents of that contract can be. It forces consumers to become attorneys. Almost everything else that UCITA does is a by-product of that portion of UCITA.
Another important message to get across is that UCITA is not an incentive for software companies to move to Virginia. They can take advantage of UCITA from any state, possible other countries, if they specify that in the contract.
Those two main points (bad for consumers and businesses, not beneficial to Virginia) were the ones worth driving home. Although you and I may live and breathe OS software, that's not a useful topic when talking to a senator. (In fact, it's confusing.)
Emily felt strongly, at the end of our meeting, that UCITA is bad for consumers. She suggested that we get more people to talk to their representatives, and suggested that we start some sort of an awareness campaign to get people in Central Virginia, and even beyond, to know more about what UCITA could do.
She's right: that would be the most effective path. It also happens to be the one that requires the most work. She promised to keep her eyes open for UCITA-related news and bills, and asked that we keep her informed. But her conclusion was telling: UCITA isn't going anywhere. No matter what we do, it's not going to go away. We need to assemble a list of amendments that can be introduced as a bill to modify the way that UCITA works. Complaining that we don't want to have our computer hijacked by Microsoft works on a publicity front, but it doesn't get far in the legal world.
I'm hoping that the VPTC will adopt this project, because I know that I don't have the energy or the time to make this happen. Now that the geeks of the world are opposed to UCITA, we have to get businesses and everyday Virginians. It'll be a lot of work, but I think that we can pull it off.
Best,
Waldo
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The business types are the ones who pay the lobbies (or appropriate funds for same), and they are the ones that are pushing fo rthis. The geeks have a different view.
Slashdot is full of the software geeks, not the software business types.
--The basis of all love is respect
What I was meaning was that the linked page is not requesting comments on UCITA, which was what Hemos [0] implied it to be on.
Writing a detailed criticisim of UCITA would probably damage credability of everything you said, because it's not what they're asking for. They're asking for more general warrenty related stuff, and that's what any comments sent there should refelect.
[0] Pot-kettle thing. Sorry Taco.
I quote:
7. What developments are underway by private or public entities at the international, national, state, or local levels that would have an impact on consumers's rights in the context of transactions involving software or other computer information products and services?
a. How would the proposed Uniform Computer Information Transactions Act (UCITA) affect consumers?
In other words, ONE part of this (7a, out of 16) is requesting comments of UCITA.
If your comment only talks on of subquestion, then it's worth is 'obviously' less than one that address most of the points they will comments on.
READ the article. (That goes for Taco too)
I haven't really followed UCITA much farther than knowing that it would bolster clickwrap licences, which alone is enough to make me detest it.
Can anybody post links to a good summary of what's wrong with the law? I'm looking for bullet-points, not a novel.
Previous state laws, in many states, have disallowed exclusions of warranties of merchantability and suitiability. In any state where the UCTIA is passed without serious editing, consumers may actually loose their rights.
In my reading of it, one of the things this law is about is entrenching click-through licenses, and the way that they remove rights from consumers.
Free Software: Like love, it grows best when given away.
SECTION 307. INTERPRETATION AND REQUIREMENTS FOR GRANT.
-
a) A license grants:
- (1) the contractual rights that are expressly described; and
- (2) a contractual right to use any informational rights within the licensor?s control at the time of contracting which are
necessary in the ordinary course to exercise the expressly described rights.
....
- (d) A party is not entitled to any rights in new versions of, or improvements or modifications to, information made by the
other party. A licensor?s agreement to provide new versions, improvements, or modifications requires that the licensor
provide them as developed and made generally commercially available from time to time by the licensor.
- (e) Neither party is entitled to receive copies of source code, schematics, master copy, design material, or other
information used by the other party in creating, developing, or implementing the information.
Dunno about you, but this would seem to be a direct frontal attack on the intent and purpose of the GPL. If nothing else, this would make the question of whether or not this law applies to GPL code a matter of life and death. If it does apply, then core values within the GPL would be negated.If I'm right here, I think that this calls for some serious investigation and response.
Free Software: Like love, it grows best when given away.
1. VISIBILITY OF WARRANTY MARKINGS
[1.1] Hidden disclaimers of warranty have been a widespread problem in the computer software industry. It has become almost a standard business practice to conceal such disclaimers to the greatest extent permissable by law, and in many cases, further. Usually, warranty terms are not disclosed on the outside of packaging, and disclosure is sometimes deferred until after the software is actually installed. The facts in this area are beyond dispute. The question is what should be required by law.
[1.2] The FTC has dealt with this issue before, in the used car arena. It would be appropriate to apply many of the labelling standards of the FTC's Used Car Rule to software packaging. Placement on the outside of consumer packaging should be required. The large type and black color requirements of the Used Car Rule should be required for at least the words "AS-IS" or "LIMITED WARRANTY". Such high prominience of the markings is needed to establish clearly to consumers that simple, clear, understandable warranty rules do apply to software. Failure to apply the required marking should of course imply a full warranty as defined in the Magnusson-Moss Warranty Act.
[1.3] Used cars have borne large, highly visible warranty markings since 1985, and this has not seriously impacted the used car industry. The FTC, in 1995 re-examination of the used car rule, chose to retain the Rule by a 5-0 vote. The auto industry has generally accepted the rule and the minor costs involved. Thus, objections from the computer software industry that such labelling requirements are unreasonable should be viewed as self-serving and disregarded.
[1.4] Rather than mandating warranties, this marking requirement makes it a consumer choice whether to buy software with reasonable warranties or products marked "AS-IS". It simply makes it an informed choice. This is consistent with the aims and history of Magnusson-Moss and with FTC policy in other areas.
2. MASS-MARKET SOFTWARE IS "GOODS IN COMMERCE"
[2.1] The software industry has tried to evade the usual regulations on goods in commerce by claiming that software is something else. In reference to the Commission's question 13A, "Is it appropriate that software be treated as a "consumer product" subject to the Act?", the answer is "Of course it is." Any other answer is a clear attempt to evade the legal obligations of a manufacturer. The FTC should act to clarify this point. Software has to be brought squarely under Magnusson-Moss, assuming it's not there already. It's time for the industry to grow up and accept the obligations of a consumer-products industry.
Thank you for your attention to this matter.
John Nagle
Animats
Menlo Park, California
1. The cuecat. That they are claiming that their rights are being violated by someone who used the software. Cuecat took away the user's rights to use the hardware by the opening of the software. These right to the hardware existed prior to the software being opended
2. Windows. Microsoft's clickwrap agreement works only one way. That they say you can return it if you don't agree, but when you try to get a refund, you only get ran around.
Fight Spammers!
Look at CPHack, you can't check the list too see if they really are filtering smut, not just anything that Mattel does not like.
Fight Spammers!
For most products, either the vendor warrents that it was built by craftsmen to specification, or the persons building it meet minimal standards of education and professionalism. Software is neither, which is a shame, because people's lives and money often do depend on the correct operation of the program. The software industry has become mature enough that some sort of warrenty protection is now appropriate.
It doesn't seem like anyone is being FORCED to warranty their software, just provide an adequate one should they decide to warranty it - which is not what the linked slashdot story implied. Mehr Info Bitte.
From my understanding (which admittedly may be flawed) what this basically amounts to is a set of "lemon laws" for high tech products (hardware, software, etc.).
If this is the case what it tries to enact is a set of base standards that a warranty must abide by. Those companies that don't use a warranty at all leave themselves wide open since they are then subject to the implied warranties created in any transaction with a consumer. Namely fitness for purpose and merchantability (i.e. it does we advertised it'll do)Traditionally software licence agreements have been used as a vehicle to disclaim any and all warranties, express or implied as opposed to providing information on what warranty is actually available (usually none). What this law hoped to do is remove the companies right to disclaim implied warranties and to force them into a minimum standard for the warranties they do provide.
Inevitably the software industries response to this will be that such laws would make it imposable for them to do business. I can't help but laugh at this since it is the exact same argument used by the auto industry years ago when there own lemon laws were enacted...and they still seem to make a mint while at the same time loosing there ability to screw consumers.
The only gotcha about this proposed law is that we as concerned citizens will have to make it very clear to congress that there must be some kind of exemption for free software. A "good Samaritan" clause if you will. If your getting something for free and your given the right to mess with its internals (whether you have the technical skill to pull it off or not) you should honestly have no right to sue anyone but yourself if it breaks
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"The Net interprets censorship as damage and routes around it."
-John Gilmore