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Bar Association Likely to Oppose UCITA
GroundBounce writes: "Computerworld is reporting that the American Bar Association is likely to vote to oppose UCITA unless it is significantly altered in a pro-consumer manner. This would provide a significant amount of clout to UCITA opponents attempting to get UCITA defeated in state legislatures that are considering it. It's nice to see that more than just a handful of lawyers see the problems with this legislation."
My inner cynic tells me the main reason why the American Bar Association wants to fight UCITA because of the strict limits of legal liability a vendor has for crappy software (read: almost none). No legal liability, no large legal fees for the trial lawyers.
;)
If they can blow UCITA to hell, I won't complain about their motives
Lawyers? Bad.
Lawyers opposing UCITA? Room spinning... balance gone... confusion rising...
That, or they're afraid that if things get too ugly, we really _will_ kill all the lawyers ;)
As you know, UCITA contains language that can be used to stamp out buyer awareness, specifically prohibiting anything constituting a 'bad review'. As such, it's potentially a very serious violation of 'caveat emptor', or buyer awareness. Even overlooking this, it's transparently obvious that fly-by-night companies and con artists always wish to trick and fool buyers, which also interferes with buyer awareness.
If you think "caveat emptor" means "buyer, sucks to be you", remind me never, ever, EVER to buy anything from _you_ ;) and, I might add, I'm damned grateful that lawyers find it profitable and satisfying to defend consumers _against_ people like that.
Understand?
There is no reason for a group representing lawyers in general to take political stands on issues such as capital punishment, abortion, gun control, etc.; these are not issues which have *any* level of consensus among the members..
I used to be a member; I resigned over the politicization. I agree with some of the positions, and disagree with others.--but I oppose the taking of positions even on the issues I agree with.
Professional organization? Once upon a time. Now it's just another center-left organization that uses a captive base to further apolitical agenda.
Oh, and :
>Every
>time a president goes throug the selection process for a supreme court
>justice, the candates have to get reviewed by the ABA.
Not any more. In the past, the ABA was provided with the names of
nominees in advance of the general public and other organization. It
would rate then "not qualified," "qualified," or "highly qualified."
There was a time when it took this duty seriously, but the last
couple of decades have seen this deteriorate into a political
litmus test. Additionally, this was onlyone piece of information
for Congress.
Now, the ABA remains free to comment, but it has no special status.
>To even
>practice law, you have to pass an ABA exam.
This is just plain nonsense. It's not true, and there is no such
exam. Individual states have bar examinations under the authority
of the state judiciary. In some states this is done in a fairly
direct manner, in others it is delegated entirely to a semi-independent
bar association. The ABA has nothing to do with these. An arm of the ABA
does accredit law schools, however (but this may change, too.)
>The ABA is probably one of
>the most powerfull organizations in the USA. If they want something,
>they get it. Period.
Not hardly. Judges are approved by the Senate over their "not qualified"
rating, particularly when it is recognized as a political rating.
Similarly, judges rated "highly qualified" for taking an activist role on
the ABA's agenda are often rejected by the senate (most often by not
holding a vote)
hawk, esq.
If you're limiting me to MS word processors, absolutely. Word 5.1 beats the tar out of Word 6-present in terms of usability. It actually let you do what *you* wanted to do, instead of what *it* wanted you to do. I stuck with old macs several years past their expiration just to stay with word 5.1. Then I found lyx and dumped the macs for unix.
OK, I think 5.1 was 1992. Fine. Word 4 was a better and more stable product, it just didn't have some of the table features of 5.1. Word 5.1 and Excel 4 marked the end of good products from ms.
(And yes, I bought them both).
hawk
>is a fault in the product.
???
Good heavens, where have *you* ben the last few years???
Class action suits happen wheneve it appears that it would be
expensive enough to defend that legal fees can be milked from the
situation.
Look at all the silly complaints leading to class actions, and the
"coupon" based settlements. Those settlements aren't happening
because the corporation is getting away with something; they're
happening because the underlying suit had little chance of winning
(but could state enough to get to an expenive trial [and lose]).
The class lawyers get paid in full in dollars, and people who (in
most cases) had no real injury get coupons causing them to buy more
from the same manufacturor.
Exploding side tanks? yes, they were more likely to ignite than the
other brand of truck--but only half as likely as a passenger car.
Class action lawsuits serve a single group: class action lawyers.
The settlments do not help the victims when there were real injury.
THe *only* example I have of the victims getting made whole is the
first iomega class action, in which the rebates were actually sent
out.
hawk, esq.
"Of course, vendors can stop innovating and concentrate on quality. But do you _really_ want to use word processor from 1991? It would be quite reliable after 10 years of testing, but I wouldn't like this tradeoff"
I am not totally unsympathetic to that point of view (how's that for a qualified double negative), but it isn't the whole story from the consumers point of view.
First, I do know quite a few people who use WordPerfect 5.1 for DOS as their word processor, for exactly the reasons you state. It can do just about everything that newer word processors can do and is highly stable.
Second, I am not asking for perfection: I am just asking for a reasonable standard of care. The software industry today is about where the auto industry was in the 1950's, when it argued that there was NO WAY to design steering wheels such that they wouldn't impale the driver in an accident. Not "not injure", mind you, but "not impale", which was a very common result of a collision in those days. Not until the consumer safety zealots started raising cain, filing lawsuits, and getting laws passed did the auto companies discover, that, hey, yeah, it can be done, and it really doesn't cost us more either.
Not perfection - just basic functionality.
sPh
"If vendors are made legally responsible for the reliability/security/usability of their products, the potential for class action suits is immense."
From the perspective of a software purchaser and implementer, that would be TERRIBLE. Why just think - software vendors might have to stop innovating and concentrate on product quality and meeting the standard of warrenty of merchentability. Just like every other producer of goods in the Western world. How awful!! What demanding standards you consumers have - expecting software to actually _work_. Wah waah waaaah.
sPh
Yeah well, you also don't hear about all the settlements. If you really want a good feel for how much medical malpractice cases _really_ cost, look at the going rates for malpractice insurance. In Philadelphia, it _averages_ in excess of 100k in many fields of medicine. Yes, that's for just ONE physician.
Sure, if the doctor or the hospital is negligent then the doctor and/or hospital should pay. However, be aware that accidents DO happen, many are simply unavoidable. Many of these awards are awarded when there is virtually nothing the doctor or the hospital could reasonably do to prevent them from occurring in the future. As long as this is true, the practice of arbitrarily awarding punitive damages is simply ridiculous. Besides just being unfair to the medical profession, it really HURTS everyone (other than the crooked ambulance chasers and such). Many doctors in Philadelphia, for instance, have been unable to generate the volume to cover the malpractice insurance premiums, forcing them to retire or move out of the city.
The current system is really screwed up. While I will not claim that doctors and hospitals do not make mistakes, these are the exceptions to the rule. The current tort system (if you could call it that) with its unpredictable juries, often poorly educated judges, "professional witnesses", arbitrary awarding of punitive damages, and other things does very little to actually discourage real negligence. Meanwhile it effectively taxes everyone. Because it's so unpredictable, costly (in terms of lawyer fees), and time consuming, the insurers, hospitals, and doctors have no choice but to settle the vast majority of the time. It is a system that is ripe for fraud.
Do you not find those adds on TV just a little ridiculous? "Have you been injured?...." Translation: "Can you concieve of any injury or trauma, no matter how little it has effected you (or whether or not it really happened), that we can play the malpractice lotto with?"
blah
You mean -gripping- hand, right? :)
-- Veni, vidi, dormivi
Jumpstart the tartan drive.
> I thought that if any states passed it, companies wishing to use UCITA, they could setup their Corp. HQ in one of these states, and everyone would be screwed...
In the USA, the Federal government reserves the right to regulate interstate commerce, so in principle one state cannot force the effects of this kind of legislation onto the citizens of another.
In practice, they are likely to have a bigger legal fund than you are, so the threat is very real.
OTOH, lots of big companies with big legal funds consume software rather than selling it, so they might be willing to throw in a lawyer or two on "our" side if that issue ever comes up in court.
On the, uhm, third or fourth hand (any Moties reading this?), the big companies that consume software will probably have enough clout with the software vendors to buy their software on a contract with more favorable terms than the UCITA offers, essentially selling the rest of us down the river by striking a deal with the devil (if you'll pardon the saturation of metaphors).
--
Sheesh, evil *and* a jerk. -- Jade
> Its adoption is another step toward reversing the earlier equation: now, consumers shall exist to serve business, which shall answer to them only when and as it suits its own interests.
That's why I voted Green in the last election.
I'm not really Green in any deep-dyed sense (though I do recognize that we are quickly converting all our natural resources to garbage in an [almost] closed system, and should give a bit of thought for the future).
But the reason I voted Green was because of the party's ties to consumer interests. Our legislators are going to keep signing off on lobbyist-written legislation until the day some election gives them a scare that they might lose their jobs if they keep on doing it.
(Score -1, Rousing the Rabble) -
I saw the current trend blossoming way back in the '80s, and I still say now what I said then: unbridled corporate power will reduce us to serfdom as surely as the institution of a feudal government would.
It is irony of the finest water that governments sucking up to corporations is now stirring up a new middle-class leftist movement, hardly a decade after the collapse of Soviet communism left many traditional leftist movements without any support.
(Score -1, Nostradamic Pretensions) -
I am beginning to suspect that the next World War will be a Global Civil War, corporate interests vs public interests. The governments of the industrialized nations will generally take the corporatist side, but the governments of many less wealthy nations will nationalize their industries and take the consumerist side, if only to keep from being swallowed up by corporations that are more powerful on the world stage than they are.
Ah, well, there's lots of static on my crystal ball, so maybe things aren't headed in such a dire direction. It should at least be good for the plot of a SF novel, though....
--
Sheesh, evil *and* a jerk. -- Jade
"Simon Hughes, program manager for worldwide pricing and licensing at Microsoft, said that under the subscription plan, Microsoft software won't use embedded self-help features, such as the ability to turn itself off or lose functionality at the end of a three-year licensing period. The company's goal will be to "work with customers to make them compliant" with the terms of the license. "
Right. That is, until this becomes widespread law, and they say 'but of course we use it, it's totally legal, look at the law'.
I don't have a life (newborn took care of that) and I live in Maryland. Maybe I'll go buy some software, open the celophane wrapper, and return it to Staples, just to see what happens.
Geez, I'm almost bored enough to do that (plus, I don't want to cut the grass:(
Jesus was all right but his disciples were thick and ordinary. -John Lennon
I was thining about this last night. While I'd like to buy some M$ software (so that they could be included in any potential lawsuit) I figured that the store with the most onerous return policy would be Babbage's, but I'm not sure that they sell any M$ stuff.
Jesus was all right but his disciples were thick and ordinary. -John Lennon
(1)
...
But Ray Nimmer, a professor at the University of Houston Law Center and a UCITA drafter, argues that the law has the opposite effect and protects licensees by putting so many restrictions on self-help that the likelihood is that it will never be used.
...and
(2)
Simon Hughes, program manager for worldwide pricing and licensing at Microsoft, said that under the subscription plan, Microsoft software won't use embedded self-help features, such as the ability to turn itself off or lose functionality at the end of a three-year licensing period.
So, why am I not getting fuzzy feelings from these guys?
Professor Nimmers says, don't worry, nobody will use the "self help" (ugggh -- that term is just too Orwellian) provision of the law because they drafted it in a way that renders it effectively useless. If it is useless, then isn't it pointless as well? If it is useful, then won't it be used? Why put it in if it is intended never to be used? If we were to take the professor's statement at face value, it looks awfully like an admission that the law was sloppily drafted. I can only hope he was quoted out of context.
Mr. Hughes says that MS is not going to use "self help" to enforce the expiration of the software licenses, but he fails to say exactly what the nature of the steps MS plans to take to make the customers more "compliant". Technically, Microsoft could sue you if you didn't like the terms of the new license, but still used your expired MS product to get at your data stored in Excel or Word files. Will their license allow people perpetual and legal access to their files?
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
If you say so. Meanwhile, the ABA operates --as do most organizations with disparate deliberative subcommittees-- within its charter and under its own rules, not the ones you set forth for them.
It seems far more likely that rather than taking a vote at the annual meeting, the motion would be brought to the floor, the jurisdictional problem noted, and then referred to the appropriate section or committee, probably the Computer Law of Business Law folks.
My point was not whether or not, in fact, Insurance Section should propose computer law legislation in lieu of the Computer Law Section or the Business Law Section. Rather, I was pointing out that, in fact, they might not be able to do so -- suggesting that the article's ambitious statement that this vote was imminent seemed, at least to me, uninformed.
The article says the Insurance Section is leading this charge. I wonder whether the Computer Law Section has taken a position, and if so, whether there is some confusion in the craft?
In short, I'm not sure that a position espoused by one section led by an Insurance lawyer is "likely" to be adopted by the ABA, particularly when there are other sections with clear jurisdiction over the subject matter. (I have no idea what the CLS is doing on this point, but given my experience, they are probably mostly the same people who were working the NCCUSL on UCITA in the first place).
Time will tell. I'm just a little surprised the article didn't even notice the issue.
There is also a long tradition in America - inherited from England - of people with lesser power making and enforcing the rule of law and reason on a rational basis. Not always, not in every case, but enough to make a difference. Sometimes. Which is better than many places can claim.
The UICTA is really, really bad law, and even the scum-sucking lawyers can see that it's a headache, and likely to lose in the end because it goes against the general principles of consumer-commercial interactions. Even ambulance-chasing types can see that there's more business in holding software manufacturers subject to the same liabilities as the rest of the known universe than in giving them a blank check to fuck everyone at anytime.
This is a major blow. Maybe, one day, it might even be enough to make a convicted monopolist focus on fixing flaws instead of new ways to screw competitors with dirty tricks, using the consumer as cannon fodder. I saw an article on Tivo in the WSJ that ended up trashing Microsoft because they just pissed off yet another customer with their consumer-screwing practices. When columnists in the WSJ are spending 25% of their column space trashing you in an unrelated story, you've probably overspent your monopoly power.
Boss of nothin. Big deal.
Son, go get daddy's hard plastic eyes.
Expanding a vast wasteland since 1996.
Really? Do you have a link that specifies their return policy? Every EULA I have says that I have to take it to the place of purchase for a refund if I do not agree with the license.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
If you do, let me know what the results are.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
Since ProCD v. Zeidenberg. Not all courts enforce this view, Step-Saver Data Sys., Inc. v. Wyse Technology & Software Link, Inc.
Hence, the reason software manufactorers are pushing UCITA which resolves all the legal ambiguity in the software manufactorer's favor.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
Take your pick of any software retailer, Best Buy, K-mart, Office Depot, etc. They all have the same return policy. No refunds on opened software. They will allow trade-ins for the same title if the product is defective.
I know that I spent a half-hour (that is not an exaggeration) arguing with the clerks and managers at Best Buy each time I asked for a refund on an opened software package. (For the record, neither refund request was due to a disagreement over the license.)
I only got a refund the first time because because the floppies were corrupted and would not let me install the software. I originally agreed to a "trade-in" except they had no other copies of the software and none of their other stores in the area had copies. Yes, the manager did call other stories to see if they had a copy of it.
The second time was because I could not install the software on my computer at all due to the installation program of the software. A trade-in would not have been any value since any trade-ins would also not install. A had a print-out of an email from the vendor telling me to take it back for a refund. After a long arguement, the manager finally relented telling the clerk, "Give him back his money. That company will refund the money to us."
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
You are neglicting the fact that it is not possible to read the EULA without first buying the package, opening the package, and reading the EULA. And, every software retail store I have seen has a no-refund policy if the software package has been opened. The software manufactorers will tell you to take it back to the store even though the manufactorers know the store's refund policy. Seems to border on fraud to me.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
No. UCITA makes "click-wrap" valid contracts. It does not make "Shrink-wrap" valid contracts.
Under the original version of UCITA, the customer had a Right-to-Return on any software that he did not agree with the license. However, it was a right that could be waived. When Maryland passed it, it said that the consumer could not waive this right. However, I haven't seen any changes to the posted stores refund policy yet.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
I read the whole article, and all the /. comments. One Question:
What the heck is UCITA?
lawyers do bad things
we tell them we hate them and don't trust them
lawyers do good things
we tell them we hate them and don't trust them
do we all sound like total shits or what?
why should any entity pay any attention to us in the future if we act like this?
---
Not only is Maskirovka wrong about this in general (the ABA nominee review has always been a friendly agreement, not a law), he's wrong about this in specific (Dubya told the ABA to piss off 3 months ago). Here's a CNN analysis.
I can see how Maskirovka might qualify as "Interesting", but ... Moderators should NEVER use +1: Insightful unless they know for a fact that the statement is TRUE.
There's a well-researched series of articles re: the prohibition of heroin (and case for legalisation) at Guardian Unlimited.
Here's the opening paragraphs:
Request for new mod category: +1 Justified Sarcasm.
Anyway...
What I want to know is what chance UCITA has in court if anyone ever sues. Seems to me that it's a pretty cut-and-dried whitewash of contract law -- for those who are in fact not IANAL, what would be the basic plan for blowing holes in this thing and what would be the chances of said gambit actually succeeding?
I would like to add a historical note to this that may, or may not be relevant.
When the Hearst collective and their various lackeys were railroading through anti-Marijuana legislation so many years ago, the only person who came up to speak against it was a representative of the American Medical Association, who pointed out the many medical uses of Marijuana, and the lack of any serious side effects.
Congress chose not to listen to him, and passed the legislation anyway. And the next two or three generations of doctors grew up believing that marijuana was the devil's weed.
the point being:
Hopefully I didn't put any [] around my words.
You state that if the law is too one sided, then
that is a recipe for fewer lawsuits. You offer
no proof. I can very easily claim the _opposite_
is true. The more unfair (one-sided)a law is,
the more people will fight it (more lawsuits).
Then you say that the ABA wants the law to have
maximum ambiguity. You once again offer no proof.
However, using your reasoning it would be safe to
say that programmers only want other programmers
to write buggy code. That way they are kept in
business.
I won't comment on your shots at
1) Democrats
2) Trial Lawyers
3) Patient bill of rights.
Hopefully you will be able to reason these
arguments out a little more after having
given them a little thought.
goodbye.
Anonymous posts are filtered.
I'm normally not given to eeeevil conspiracy theories, but the ABA is not a pro-consumer group. It's a pro-lawyer group. If a law is too one sided, either on the consumer side OR the corporate side, then that's a recipe for fewer lawsuits. What the ABA wants is for laws to be maximized to have the most ambiguity possible, so that lawyers have to go into court to get rulings.
Some of the time, this actually works to keep things balanced, but it often also is a bad thing. Like, the current Patient Bill of Rights going through Congress where the Trial Lawyers via the Democrats are trying to push up the "medical lottery" limits (aka HMO lawsuit limits). [Not that I don't think patients shouldn't be able to sue medical practitioners, by the way, but...]
--
Sometimes it's best to just let stupid people be stupid.
Why wouldn't there be a slashdot like
system for bills and all the politians that
put forward that bill. That way there can be quick
statistical analysis of who should really be
replaced, so that they really represent people
who elected them not the corporations who fitted
election campaingn bill, for sake of who they
do write legislations.
I mean just hire for each state a dept of 10 ppl
each so they will place the information on to
computer database, that would probably be web accessible.
Everything will be translated into simple talk
but each person in govenrment that has ability
to change laws will have identification.
As pattern analysis can be done and procorporate
anti-people rights heads can be snapped.
just 2c
Look guys, you're all being irrational... Microsoft would NEVER abuse UCITA to unilaterally remove capabilities from someone's computer. "Microsoft's vision is to empower people through great software - any time, any place and on any device." Remember? They're in it to empower people, not use their evil corporate powers to strip consumers of all ability to participate in fair contract negotiations.
OK,
- B
--
http://www.bradheintz.com/
- updated
But anytime the lawyers are on your side opposing something you oppose - well, it sure makes me nervous!
Top Most Bizarre/Disturbing Error Messages
Yes, this is off the initial topic, but the arbitration that is currently ocurring is, quite frankly, ominous and disturbing.
While the wheels of the tort law machine are fuxx0red, arbitration is not much better.
If you had a problem with your employer, say Wal-Mart not approving your compensation for on the job injuries, you could be forced, depending on contract, to use an arbitrator that hears several hundred cases a year for your erstwhile employer. Or is from the state of the company, or.... The result of this is that the lawsuits still occur--only the lawsuit attempts to get the arbitration agreement overturned. Once that happens, then a second lawsuit must be brought in order to receive redress from the company for whatever offence they may have committed.
So instead of one trip to the lawyer's, you either have a) Trip to the arbitrator (a lawyer) or b) 2 trips to the lawyer--one to overturn the arbitration agreement, and if successful, another to bring a lawsuit against the company in question. And this hurts the financial prospects of lawyers how? And is supposed to eliminate lawsuits? Heh. good one.
Not to mention the fact that one of the parties has much more power than the other and can contractually guarantee a friendly venue and the other party can't. This, in no uncertain terms, sucks.
Protege Posterioram Tuam
It's interesting to compare this turgid model law with the proactive consumer legislation of more than three decades ago. Then, in the wake of groundbreaking work such as Nader's, we agreed as a society that the consumer must be served, protected, and ultimately given the power of redress when bilked, injured, or otherwise harmed by business. We seemed to understand the premise of the old warning, caveat emptor.
Today, we are inclined otherwise: UCITA, along with movements to limit tort liability, is a philosophical realignment so profound it makes one tremulous about the eagerness to forfeit personal dignity for the benefit of mega-wealthy companies. Its adoption is another step toward reversing the earlier equation: now, consumers shall exist to serve business, which shall answer to them only when and as it suits its own interests. Our new motto, venditor emptor, says that the proper order of things is Microsoft first, you second. Sign here, suckers.
We need to ask ourselves how we've lost something essential, which, for want of a better word, let's call spine. And let us see whether, if we still have what it takes as a free people, we can get it back.
"A witty saying proves nothing." - Voltaire
For those unfamiliar with the ABA, not all attorneys are members of the ABA. In fact, most attorneys generally do not belong to the ABA because of the organization's political views. For instance, the ABA opposes the death penalty.
Understanding ABA membership does not include a majority of the attorneys in US and state bars, in which membership is mandatory, do, then it would have been much more significant if each state bar took a position on the subject. However, such action would be extremely unlikely.
"There ought to be limits to freedom"
You forgot a point, too... Under UCITA, a clause in the EULA that says "By opening the shrink-wrap, you accept this EULA" would be valid, even if you have to open the package BEFORE you can read the EULA!
Fascism starts when the efficiency of the government becomes more important than the rights of the people.
If new states don't pass it, is there any chance of getting it revoked in the states that already pass it?
I thought that if any states passed it, companies wishing to use UCITA, they could setup their Corp. HQ in one of these states, and everyone would be screwed...
Looking for any old 8-bit Heathkit/Zenith software/hardware - http://heathkit.garlanger.com