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Software Licenses Get Worse
Slimbob wrote in with the word about UCITA, a wonderful little law that, if passed allows for remote shutdown of software if you violate the license, make shrink wrap license more enforceable, and outlaw reverse engineering, amongst other gems. Get more details here. Thanks to C.Scott Ananian for sending us a UCITA page, with the TeX version of the letter to be sent and more information.
What contracts can't you make? I can't agree to work for less than the minimum wage. I can't agree to rent an apartment without hot water. I can't agree to sell my organs. Putting it another way, while I might agree to do these things, I can't be held to that agreement.
What are the default terms? If I agree to paint your house, but we don't set a time for doing it, and you sue me when I don't do it, I can't avoid the lawsuit by saying I'll paint your house in the year 2019. The court will say that the parties understood that I would do the job in a reasonable time (perhaps a month). In cases like this, where the parties don't address a particular point in their agreement, the law will generally supply a default term in order to make the contract enforceable.Keeping the foregoing in mind, this proposed law does the following things: (1) It tells you what kind of software licenses you can't agree to -- and by the sound of it, not very much is out of bounds. (2) It tells you what the default terms will be when a license doesn't fill everything in.
The suggestion that this proposal represents some sort of government intrustion into the software maker/consumer relationship doesn't seem fair. Under this law, every consumer gets enough rope to hang themselves with; there's very little that's prohibited. As for the default terms, you're free to contract around them if you don't like them. By libertarian lights, this law is -- if anything -- too slanted in favor of consumers.
(That doesn't mean it's a good law, of course; it just means that if you consider yourself an anti-government sort, you should understand what this proposed law would[n't] do.)
By way of background (missing from the article from InfoWorld), UCITA was until recently the proposed UCC 2B. The proposal to add a provision to the Uniform Commercial Code to deal with software licenses was until recently a joint project of the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The proposal was so awful, and attacked by so many people (especially legal academics!) that the ALI pulled out. This is unusual.
NCCUSL historically is less likely to throw roadblocks in the way of a proposal once a drafting committee says it's done. On the other hand, this one is so controversial, for so many, many reasons, that there is a little hope that the steamroller can be stopped. Uniform Commissioners are political appointees, usually by state governors, so if you or your firm happens to have any pull in your state, a word to the (un)wise might help. Furthermore, even if it passes NCCUSL it then has to be adopted state-by-state, so there's another chance to fight it.
For my account of why an earlier draft was bad for e-commerce (the latest draft is bad in slightly different ways) see 2B as Legal Software for Electronic Contracting -- Operating System or Trojan Horse?.
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
I have a blog.
From what it says in the article, vendors can already decide to repossess software. A case with Revlon is cited. However this would add an air of legitimacy to it and encourage proprietary vendors to build backdoors into their software. In addition this law would allow vendors to disclaim all warranties and increase the strength of the EULA.
Given the rather questionable EULAs in effect today and the rather questionable software quality in proprietary software, I don't think any manager in his right mind would be willing to stake his job on a piece of software under the terms set forth here.
I can only see this as a boon to the open source software movement, which would offer the following over proprietary:
1) A much more agreeable license. If a license is Open Source, no one will ever try to repossess your software.
2) No warrantee, but if you're using a package and something breaks, you can at least fix it yourself in the worst case.
3) It's free. If your company merges with another one, you don't have to ask anyone for additional licenses or permission to use current licenses.
4) No proprietary file formats. No need to reverse engineer anything. Your data is not being held hostage by anyone.
5) Your terms, mostly. You can do anything you want with the software, with the only restriction being that you make any improvements you make available to everyone.
So you see, I hope this law passes because the sooner everyone is demanding open source, the easier my life will be.
What gives them that right? If you lend a laptop computer to a friend, and he didn't return it when you asked him to, does that mean you can break into his house and take it?
"Hello, Mr. Gates. I'm selling my computer to someone, And I'd like your permission to give him my copy of Windows as well." Now, Microsoft can just as easily say "No, afraid not. BUT, he's perfectly entitled to buy his OWN copy!"
"...but your warranty says that I can return it if it doesn't work as it says it would."
"Too bad. We've disclaimed that warranty."
I've noticed on the chart that Microsoft was in full favor of this bill. (suprise!) Some other stupid items follow:
McCabe added that vendors are not permitted to exercise self-help if the vendors are aware of third parties that could suffer serious losses because of it.
So, if a company is confronted with this, they can simply say: "But we had no idea!"
Software vendors argue that they are within their rights to limit the use of their products.
Absolutely, but if you want to limit it, you limit it in the actual design of the software. You don't crumble a company's infrastructure just because of a licensing agreement.
"[the bill] says manufacturers are not liable for the poor quality of their products,"
Gee...looks like Microsoft is off the hook. Answer this: If the maker of the software isn't responsible if it sucks, who is?
"If I have to guarantee that my software will perform the way you think it's going to perform, that's going to be costly for me," Winpro's Harris says.
Actually, that's correct. Expecting Microsoft Excel to walk your dog isn't reasonable. BUT, expecting Microsoft Windows not to crash every hour, is. The idea is that Software manufacturers have to guarantee that the software will perform the way THEY claim it will perform. But if it doesn't,"...manufacturers are not liable for the poor quality of their products."
Seems to me, that software vendors want to take more responsibility when it comes to them getting their money, but when it comes to their software not performing at it's expected level, they don't want ANY responsibility. It's a 2 way street, folks. They're just trying to put up One-Way signs.
-- Give him Head? Be a Beacon?
-- Give him Head? Be a Beacon? :P)
(If you can't figure out how to E-Mail me, Don't.
Yes, I can see how this might help OSS (or whatever), but I can see how it would hurt it just as bad. You do realize this has the potential to kill WINE and Samba, right? The reverse-engineering clause would kill those. I suppose you could do something with WINE by using the programming references, but you're not going to get as far as you might by reverse engineering Windows (and no telling how liberal their definition of reverse engineering will be; you really can't be bug-for-bug compatible without doing some kind of reverse engineering).
One thing I'm not clear on: what kind of a law is this? It says that once it's ratified by a group of state attorneys general and then passed by a few state legislatures, it will become law. Since when is that how things work?
If there's ever been a time for the open source community to make itself known, this is it. Now, more than ever, we have proof of the damage to the consumer that intellectual property concerns can do. Apparently, if we give our legislators enough rope, they will gleefully hang themselves.
Here's what you can do:
- Talk to management. Get them to see what intellectual property concerns will do to their bottom line. Then suggest the alternative: open source.
- Support things like Consumer Reports, and the Better Business Bureau.
- Inform would-be software buyers of the tradeoffs to buying proprietary software.
It's a decidedly different tact. If you're on the open-source train, I'd have a good laugh right now, because these people are putting the nails in their own coffin, free of charge -- The ultimate compliment to the OSS movement.
--
Time to put the /. effect to good use?
Here's a copy of a letter I just fired off to my Congressman. (Hope it's accurate...):
/ features/990531ucita.htm Additional InfoWorld articles about the Act are available at http://www.infoworld.com/cgi-bin/displayStory.pl?/ features/990528ucitareport.htm
To the Honorable Janice D. Schakowski:
The federal government has always been a leader in consumer protection. Unfortunately, our state governments are not always so progressive. The National Conference of Commissioners on Uniform State Laws (NCCUSL) is planning to meet in July to vote on the ratification of the proposed Uniform Computer Information Transactions Act ("the Act"). The Act is a revival of the highly criticized "2B" amendment to the Uniform Commerical Code (UCC). The Act would be an unmitigated disaster for consumers of software products. Among its provisions, the Act would:
-- Drastically increase the enforceability of "shrink wrap" software licenses. These licenses are typically included inside the sealed software packages that appear on store shelves. Consumers have no ability to negotiate terms or even see what it is they are agreeing to prior to paying for the software. These licenses often contain draconian terms such as prohibiting anyone from publishing bechmarks or evaluations of the software without the manufacturers permission (ie, muzzling free speech), prohibiting the transfer of the product to a third party (ie, gutting First Sale rights under copyright law), and prohibiting reverse engineering (ie, gutting Fair Use rights under copyright law).
-- Allows software vendors to more easily disclaim any warranties and escape liability for defective products.
-- Gives specific authorization for software vendors to remotely disable software if the vendor believes its license terms have been broken -- without any finding of this fact by a court or other neutral body, no due process for accused license violators, and insufficient safeguards for customers who might not even find out they have been accused of a violation until such time as their software has been shut off. Even a threat to revoke the license of a mission critical software product could be an unfair bargaining lever against small businesses without the resources to fight back.
I urge you to investigate this matter and take steps to ensure that software consumers are adequately protected. Most software sales involve some form of interstate commerce and so federal jurisdiction should apply if Congress decides to exercise its authority in this matter. It is imperative that Congress put the states on notice that it will not tolerate legislation that harms consumers and benefits only multi-million and billion dollar corporations. It is important to act fast because if the NCCUSL approves this "model" legislation in July, it is highly likely that state legislatures will give rubberstamp approval to it just as they do to UCC changes. If that happens, Congress should not hesitate to override this anti-consumer state legislation.
Software manufacturers are already entitled to 95 years of protection under existing copyright laws, including both civil and criminal penalties for copyright infringers. It is imperative that the existing rights of consumers under copyright law are not stripped away by an added layer of contract rights granted at the state level.
For additional information on the Act, please see the article "Licensing time bomb: Software-law dispute explodes as enactment draws near" in InfoWorld magazine. This article is available on the World Wide Web at http://www.infoworld.com/cgi-bin/displayStory.pl?
Thank you for taking the time to consider my concerns.
Sincerely,
Aaron M. Renn
arenn@urbanophile.com
1. This is draconian legislation (or whatever you want to call it) in every sense of the word. The software companies will not be held liable for the software to work, and they can kill "your" copy of their product on a whim.
2. The belief that the consumer market will be able to police the proposed legislation, putting companies out of business if they shut users down, is so absolutely ludicrous that it's almost funny. The average consumer deals with MS failing on a daily basis, and yet continue to purchase their products, although there are others out there. This will make it even MORE difficult to bring competition and fair play into the market. I don't think frightening can be used too much here.
3. Big Brother, here we come. This is the complete and total annihilation of any rights that a software purchaser may have had before. Not allowed to resell/give/transfer a software package without vendor permission? WTF is with micromanaging consumer use/reuse? Again, we're looking at a very scary scenario here. If this passes, what is to prevent the federal government to pass a similar law/set of laws? What is to prevent them from passing a similar law/set of laws with provisions that the NSA/FBI/CIA have access to every shred of data on every individual's computer system? This is the logical progression from such a law, and if this happens, it will become VERY difficult to get rid of.
The gist of what I read in the aforemention article is that the software companies (and is anyone really suprised that MS is in favor of this?) want complete and total control of what users can and cannot do on their computers. I can agree with the concern about piracy and RE, to an extent. HOWEVER, without RE (reverse engineering) we'd probably not even have half the products (payware and otherwise) that we have today. This is including Windows (c'mon, Xerox and Apple had a GUI LONG before MS even thought of it, and need I bring up Mesa, Samba, etc? All solid products making use of RE to figure out necessary hidden/proprietary protocols).
The only way to stop such a draconion piece of legislation is to make it crystal clear to our state legislatures (for those of us who are in the USA) that anyone who votes FOR this thing will have a bitch of a time getting reelected. We also need to make it clear that there WILL be a series of court challenges to this legislation, as I seriously doubt the ACLU will allow for this to occur.