The problem is that publishers are able to take advantage of two sets of laws, the commercial law that enforces licenses and eula's, as well as the copyright and related laws (DCMA) that attach penalties, (sometimes criminal) to unauthorized copying.
There is a principle in copyright law call first sale doctrine (or somethign like that) that means that once you buy a book, you can go ahead and sell it again and the publisher can't restrict you. This applies to software as well, but software publishers try to get around it by creative EULA's. I wouldn't have a problem with that if they were forced to choose between the protetections of a EULA or the protections of copyright law, but like anyone else, they want it both ways. They try to take the benefits of copyright law (criminal penalties, etc.) while cutting out the public's rights to copyrighted materials (first sale, fair use, etc.) wiht EULA's.
I agree that UCITA does not mandate any new warranties, as long as you disclaim them (prominently). This is actually done to benefit consumers, although at the expense of small software developers who can't afford to hire lawyers to put on caps lock and disclaim all WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE blah blah blah.
The poster (to another thread) who mentioned that another good idea is to limit the remedy to the customer's money back, was on the right track, as limiting and disclaiming warranties in the fine print, especially express warranties (those warranties arising by the words or conduct of the merchant seller) is much more likely to draw fire as unconcionable than merely dictating the customers recourse should there be a breach.
There is a lot of confusion here, though, about the use of the terms contract and license. The way I see it, a license (in its pure form) gives you the limited right to use (copy, distribute, make derivitave works from, etc.) a particular piece of intellectual property. A contract is a promise which the law will enforce. I think that what we think of as a "license" is actually a contract in which you undertake certain obligations (to pay royalties, to pay for any breach of the license terms) in return for the license of the software. So in that vein, I think that the contract/license distinction is meaningless.
Except: that the UCITA, by giving force to clickwrap agreements, (which are contracts of adhesion if I ever saw them) allows big software distributors the choice of whether to pursue you under a contract or copyright cause of action, such decision being most likely based on whether they want you to go to jail (some poor schmuck like you or me) or wring some moolah out of you (some company with bucks).
This is wrong. Either software is provided pursuant to a contract, in which case the publisher can limit things like redistribution and limited copying, and the cause of action it civil, or it is copywright material, which gets you in jail for piracy, but does not allow the limitation of redistribution or contractual limitations on "fair use".
So the short answer is, the warranty part of UCITA is not the danger, the danger is in giving copyright protections to contractual terms that are not negotiated, but rather presented as contracts of adhesion.
At first, when I read this ranthread, I thought that my long held theory that software houses actually need piracy to prosper was proven wrong. But then, I came to my senses.
I was thinking something along these lines: 1. What makes software such as an OS or office suite valuable? One answer; ubiquitiousness. In econospeak, network effects. Like a telephone or email, the utility of the application/OS increases nonlinearly the more people use it.
2. How does a firm get past those awkward years when the network effects of their software are negligble, until they can really start to rake in some dough? Simple, give it away to build market share.
3. How does a firm buy caffienated drinks for its minions when it is giving away its software? Well, you charge the customers who can afford it.
4. The customers who can afford it, got that way by being shrewd negotiators, if they see you giving it away, they will demand it for free to, right? Yes, so you make it so that it is illegal to obtain the software for free, but that it is only worth it to enforce that law when a customer is a certain $ize. That way, judgement proof customers basically get the stuff for free, building a user base, until they get big enough to afford it, then they have to pay. The big guys subsidize the little guys who are getting a free ride (or at least that is what they would like you to think)
5. Now, technology allows you unbundle each and every bit of value your software provides to not only the big firms, but each individual little user as well. You already know what the market price of the software is for "licensed" users (non-judgement proof) and because you are a monopoly (don't take my word for it) your pricing has nothing to do with the actual cost of making the product. Now you can go after all the little guys for whatever you figure they will pay for each bit of value that the software provides, and since it comes installed on the machine (Free!, Like Shareware!) They will happily fork over the small amount that you ask for. Maximum profits accrue to the firm that can wring the most money out of each market segment, just ask the airlines 'bout coach, first class, etc.
Does this bring down the cost of software for everyone? Not if we are on a monopoly pricing curve.
What does it all mean? I am not sure. This whole thing justcameoutkindoffinnegan'swakish, I haven't really thought it out yet.
What really irks me is that I think the answer lies either in copyright or contract, and that teh two should be mutually exclusive. In other words, you don't go to jail for violating a contract, and conversely, there should be no contractual modification of fair use or first sale doctrines.
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The problem is that publishers are able to take advantage of two sets of laws, the commercial law that enforces licenses and eula's, as well as the copyright and related laws (DCMA) that attach penalties, (sometimes criminal) to unauthorized copying.
There is a principle in copyright law call first sale doctrine (or somethign like that) that means that once you buy a book, you can go ahead and sell it again and the publisher can't restrict you. This applies to software as well, but software publishers try to get around it by creative EULA's. I wouldn't have a problem with that if they were forced to choose between the protetections of a EULA or the protections of copyright law, but like anyone else, they want it both ways. They try to take the benefits of copyright law (criminal penalties, etc.) while cutting out the public's rights to copyrighted materials (first sale, fair use, etc.) wiht EULA's.
Bad, Bad evil people.
I agree that UCITA does not mandate any new warranties, as long as you disclaim them (prominently). This is actually done to benefit consumers, although at the expense of small software developers who can't afford to hire lawyers to put on caps lock and disclaim all WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE blah blah blah.
The poster (to another thread) who mentioned that another good idea is to limit the remedy to the customer's money back, was on the right track, as limiting and disclaiming warranties in the fine print, especially express warranties (those warranties arising by the words or conduct of the merchant seller) is much more likely to draw fire as unconcionable than merely dictating the customers recourse should there be a breach.
There is a lot of confusion here, though, about the use of the terms contract and license. The way I see it, a license (in its pure form) gives you the limited right to use (copy, distribute, make derivitave works from, etc.) a particular piece of intellectual property. A contract is a promise which the law will enforce. I think that what we think of as a "license" is actually a contract in which you undertake certain obligations (to pay royalties, to pay for any breach of the license terms) in return for the license of the software. So in that vein, I think that the contract/license distinction is meaningless.
Except:
that the UCITA, by giving force to clickwrap agreements, (which are contracts of adhesion if I ever saw them) allows big software distributors the choice of whether to pursue you under a contract or copyright cause of action, such decision being most likely based on whether they want you to go to jail (some poor schmuck like you or me) or wring some moolah out of you (some company with bucks).
This is wrong. Either software is provided pursuant to a contract, in which case the publisher can limit things like redistribution and limited copying, and the cause of action it civil, or it is copywright material, which gets you in jail for piracy, but does not allow the limitation of redistribution or contractual limitations on "fair use".
So the short answer is, the warranty part of UCITA is not the danger, the danger is in giving copyright protections to contractual terms that are not negotiated, but rather presented as contracts of adhesion.
At first, when I read this ranthread, I thought that my long held theory that software houses actually need piracy to prosper was proven wrong. But then, I came to my senses.
I was thinking something along these lines:
1. What makes software such as an OS or office suite valuable? One answer; ubiquitiousness. In econospeak, network effects. Like a telephone or email, the utility of the application/OS increases nonlinearly the more people use it.
2. How does a firm get past those awkward years when the network effects of their software are negligble, until they can really start to rake in some dough? Simple, give it away to build market share.
3. How does a firm buy caffienated drinks for its minions when it is giving away its software? Well, you charge the customers who can afford it.
4. The customers who can afford it, got that way by being shrewd negotiators, if they see you giving it away, they will demand it for free to, right? Yes, so you make it so that it is illegal to obtain the software for free, but that it is only worth it to enforce that law when a customer is a certain $ize. That way, judgement proof customers basically get the stuff for free, building a user base, until they get big enough to afford it, then they have to pay. The big guys subsidize the little guys who are getting a free ride (or at least that is what they would like you to think)
5. Now, technology allows you unbundle each and every bit of value your software provides to not only the big firms, but each individual little user as well. You already know what the market price of the software is for "licensed" users (non-judgement proof) and because you are a monopoly (don't take my word for it) your pricing has nothing to do with the actual cost of making the product. Now you can go after all the little guys for whatever you figure they will pay for each bit of value that the software provides, and since it comes installed on the machine (Free!, Like Shareware!) They will happily fork over the small amount that you ask for. Maximum profits accrue to the firm that can wring the most money out of each market segment, just ask the airlines 'bout coach, first class, etc.
Does this bring down the cost of software for everyone? Not if we are on a monopoly pricing curve.
What does it all mean? I am not sure. This whole thing justcameoutkindoffinnegan'swakish, I haven't really thought it out yet.
What really irks me is that I think the answer lies either in copyright or contract, and that teh two should be mutually exclusive. In other words, you don't go to jail for violating a contract, and conversely, there should be no contractual modification of fair use or first sale doctrines.
----enough already ---------------