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UCITA Debates Trudge Onward
prockcore writes: "CNet is running a story
on a debate involving proposed changes to the Uniform Computer Information Transactions Act (UCITA). Changes include altering Opt-in/Opt-out rules, removing limits on public criticism, removing some limits on reverse engineering, among others."
Congress passes copyright law, the states pass contract law. Contract law is what the EULA deals with. A state can easily declare a MS EULA non-enforceable in its borders if it violates state law.
Congress had nothing to do with UCITA, it was created by an NCCUSL committee. UCITA is part of the Uniform Commercial Code, which is designed so that all states have the same rules when deciding questions of interstate commerce. It is a sort of compromise between state's rights and imposing Federal control. Every state gets to decide if it accepts the code, most of the time it is non-controversial. UCITA was poorly conceived and so got a lot of flak.
There is no constitutional limit on what clauses a contract can contain.
NDA clauses (I will show you my trace secrets as long as you promise not to tell anyone else) limit "free speech".
Arbitration clauses limit your right to have courts address wrongs.
Covenants (you can buy the house, but you can't put a satellite dish on the roof) limit what you can do with your private property.
Non-compete clauses limit the jobs you can take.
All of the above types of clauses have been upheld by the courts. The courts will only void a clause that violates the norms of society. (You can't sell yourself into slavery.)
Having said all that, I think the no-criticism clauses step accross that line.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
A good point.
:)
Though in this case, congress would be passing a law enabling businesses to limit speech, which would simply mean that Congress is passing a law that prohibits speech through the medium of businesses, which would violate the 1st Ammendment.
Another argument: The terms of a contract are only valid so long as they can be legally enforced -- you can't enter into a legally binding contract with me that says that I can kill your family if you don't make your payments on time, for example. Thus a contract term is only valid if the law will enforce it -- thus congress must have passed a law which made such terms legal, and will use the force of law to enforce such terms. If the contract term being enforced by law a prohibition against speech, is that not a violation of the first ammendment?
Just a thought.
The enemies of Democracy are
Please realize that traditional contract needs signing of both parties, while UCITA would make "click-thru" or "open the wrap and you agree" contracts legal binding.
It makes the game a lot different - if you put stupid clauses in a traditional contract, sure they're legal, but I can disagree and walk away without signing. It is effortless.
To disagree with UCITA contracts you'll have to jump thru hoops like refunding, calling, etc.
That's why we think the UCITA would need more protection from stupid clauses.
The primary purpose of a software license is to thwart first use law, where an original purchaser of a product is permitted to dispose of that product in any way they see fit to do so.
During the original "video revolution", there were a number of cases of "piracy" which had to be dismissed because when you bought a video, you *owned* it, and the copies were made with the permission, tacit or otherwise, of the *owner* of the video.
Licensing permits a publisher to prohibit first use, and therefore control the after market. The current ASCAP and RIAA noise against "The Wherehouse", "Graywhale", and other stores whose business is the sale of used CDs is based on the idea of license, and the non-transferrability of the license, once granted.
It's really telling that the referenced article notes that one of the ammendments to UCITA tries to reestablish implied warrantees on "material defects", when in fact the product itself is immaterial, leaving you just as screwed from "software with known defects" as before.
-- Terry
Here's a good thing:
11. Amendment # 11: Section 410 (new)
Add the following new section:
SECTION 410. NO IMPLIED WARRANTIES FOR FREE COMPUTER PROGRAM. The warranties under Sections 401 and 403 apply to a computer program only if the licensor intends to make a profit from the distribution of the copy of the program or acts generally for commercial gain derived from controlling use of the program or making, modifying, or redistributing copies of the program.