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UCITA Hits A Few Speedbumps
mmt writes: "The Los Angeles Times has an interesting article on the past, present and future of the UCITA." Slashdot has covered the Uniform Computer Information Transactions Act before. It's interesting to see that some of the brighter purchasing agents have already encountered and rejected attempts to use UCITA in out-of-state contracts. Have you or your company run into a situation where a software company wanted you to buy software under UCITA's rules?
It's not as though consumer lititgation is exactly destroying their profits, either. Microsoft is one of the most profitable companies in the country, so the current level of consumer litigation is hardly driving them into bankruptcy. I hadn't thought of it in exactly these terms, either, but what does it say about a company when they argue that they can't be honest with their customers because it would cause too many lawsuits? Is there any worse indictment of the industry as it now exists than their own admission that being honest with their customers would result in increased litigation and decreased customer choice?
There's no point in questioning authority if you aren't going to listen to the answers.
Under UCITA, MS would be given the ability to impose a subscription format for all of its software without you agreeing or even knowing about it. The clause saying this would be easily tucked away inside the shrink-wrap license without the consumer having to have even known about it. Further, under UCITA, Microsoft can shut off your software remotely whenever they want if they feel you have violated any of the clauses of their shrink wrap license (or any other 'implicit' license they feel you have been subjected to by purchasing or using their software). Microsoft has been and is one of the primary backers of UCITA. This is not a mistake. MS wants to have full control over what it has supposedly "sold" to you. But, because of UCITA, you haven't really bought anything because full control of the product (just like under Office Subscription Edition) rests with Microsoft and, even without court order, they can repossess what they have supposedly "sold" you.
- How are they going to ban me of selling my copy of Age of Empires to my brother for $10?
- Word of mouth spreads quickly on the Internet, I can't wait to see how they are going to ban negative reviews
Laws have to be simple enough so people don't have to take their case to court everytime and pay a laywer some X amount of dollar by the hour. (But of course, laywers would love that) In fact, with more complex laws, the state is beginning to look like the Catholic Church in the Middle Ages. (Clerks = Laywers, Cardinals = Senates, Big bad corporations = Big bad Feudal lords) There is simply no way that these laws can be upheld, and therefore they are waste of good trees...Just my 2c
One question that I've always had about UCITA is how it can possibly be reasonable to manage software sales under any state law, much less try the nonsense approach that MS et. al. are trying under which the sale can be held to be under a state that has no apparent relevance to the sale. If I (a citizen and resident of California) buy software written by Microsoft (a Nevada corporation whose primary place of business is in Washington) through a local store, what in hell do the laws of Virginia or Maryland have to do with it? You could plausibly argue that the sale should be under California law, or less plausibly under Washington or Nevada law, but why should the laws of a state where none of the principles of the sale are involved have any relevance? If anything, this is the clearest possible case of interstate commerce and should be handled by a Federal, not a State law. Any plausible suggestions?
There's no point in questioning authority if you aren't going to listen to the answers.
The article is very interesting but I don't see many speed bumps ahead other than a million court disputes over which version of UCITA is right. Either way its bad of OSS simply because in on these battles it will be the Open-Source side that gets slapped with the gag-orders and injunctions that keep us from doing business.
Stand up for your rights, fight UCITA when it comes to your state.
Never knock on Death's door:
The Anti-Blog
It's absolutely amazing the nonsense that comes out of these people. A particularly revealing quote from the article:
IOW they claim that it's too expensive to require them to give consumers honest information about their products. At the same time, they want to be able to put terms into their licenses that would make it impossible for third parties to review their products honestly. So much for being able to make informed purchasing decisions, which any economist will tell you is essential for an effective marketplace. At the same time, they want the right to refuse refunds to consumers who do buy the software and then find out how useless it is.
There's no point in questioning authority if you aren't going to listen to the answers.
I am an attorney, and I do a lot of negotiation over software licenses. I used to always insert a clause that says:
The Parties hereby agree that this Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
Now, that clause says:
The Parties hereby agree that this Agreement shall not be governed by the United Nations Convention on the International Sale of Goods nor the Uniform Computer Information Transactions Act or any implementation thereof.
I have yet to hear any objection to this language during negotiations. I am hoping this practice of negating UCITA becomes as common as negating the UN convention (i.e. very common).
-Steve
Democracy is a poor substitute for liberty.
My company recently enacted a "code of conduct", under which "software piracy" is not allowed. My section manager requested me to "buy a licence" for a Linux server I had installed. No matter how I tried to explain the GPL to him, he wouldn't budge, so I had to order a Linux distro. I hope he's satisfied now.
It is a set of contract provisions that in some cases would be read into international agreements. When it was developed, no one knew how they would be applied, and no one wanted to be the "test case" for these new provisions. So, attorneys, being the risk-averse set we are, started putting language in agreements that explicitly disclaims application of the UN Convention.
As long as the UN Convention is not typically used, attorneys will shy away from having it apply to their agreements, and they will avoid it in their agreements. My hope is that UCITA suffers a similar fate: obsolescence through non-use.
-Steve
P.S. I do want to point out that my knowledge of the UN Convention on the International Sale of Goods is skimpy at best. There may be a lot of valuable case law out there interpreting it -- but lacking that knowledge, I avoid it.
Democracy is a poor substitute for liberty.