I'd love to provide you with some clickwrap citations but I'd have to meander down to the law school to do it. My Westlaw access is off at the moment and it's 1:10 a.m. so I think the law library is closed for the night. However, the consideration in a clickwrap license is promissory (you promise not to do certain things as set forth in the agreement you averred to have read when you click "I agree"), in exchange for the offeror's consideration of a license. The assent is evidenced by the click. There is no obligation of disclosure in contract law except insofar as disclosure is required to avoid fraud (and when required by statute). Your comment that "you've already bought the software" is off-point, both because until you agree to the license all you've bought is an overpriced "CD Coaster" and because the UCC explicitly entertains the possibility of making a cash sale with undisclosed terms subject to the condition that the buyer can revoke the sale within a reasonable time (10 days, I think, but might be 3) upon discovery that the terms are unacceptable to the buyer.
I don't see where you get that UCITA attempts to allow people to be bound by contracts unaware. A term like the property transfer you sarcastically suggest would be roundly booed down by a court as unconscionable -- and any corporation that actually did that might actually face a derivative action from its shareholders for gross misconduct (the BJR doesn't cover rampant stupidity).
Perhaps someone could provide a clear pointer to the actual text of the UCITA -- I'd be real curious to see how they intend to abrogate the doctrines of assent and consideration, or where they think judges who will go along with it are to be found.
Shrinkwrap and clickthru licenses DO form contracts. There's a lot of caselaw to that effect. I posted a few citations on this here on Slashdot the last time this issue came up. Do a law journal search on "clickthrough" and you'll find HUNDREDS of law review articles that will discuss the issue to death. (My Westlaw access is currently suspended or I'd dig up a few cases on point.)
As I point out elsewhere, software authors are already liable for bugs in their software; as far as I can tell, UCITA doesn't change that except insofar as it makes explicit in statute that which is already true in the common law. As I understand it (on the limited information I have), all UCITA might do is discourage a court from refusing to enforce a waiver of liability provision on the grounds of consumer protection. A court could still choose to refuse to enforce such a provision because, for example, the court felt that the provision was not prominently displayed. See, e.g, Mundy v. Lumberman's Mut. Cas. Co., 783 F.2d 21 (1st Cir. 1986), or Henningsen v. Bloomfield Motors, Inc. 161 A.2d 69 (N.J. 1960). Henningsen is interesting because it's a case where someone attempted to waive product liability by a contract clause as permitted by a statutory scheme (similiar to what UTICA would erect) and the court refused to allow the waiver and held the seller liable because the waiver was not "prominent" enough. (This is why waivers of liability in most contracts are printed in all upper case. But that doesn't matter if they're at the end of the agreement in a scrolled window, unless you program your click through to ensure at least that the entire license gets displayed.)
Let me tell you what you can't afford. You can't afford the liability of any of your thousands of employees having the ability to commit the company as a whole to damn near anything.
What? UCITA modifies the law of agency, too? Or did you not know that an employee of a corporation can only bind the corporation if she has actual or apparent agency, where actual agency is being actually authorized by the corporation to bind it, and apparent agency is appearing to a reasonable third person as being an agent of the corporation, able to bind it. Note: reasonable person, not reasonable computer. If Judy in the secretarial pool clicks on a click-through license, that won't bind the corporation to anything because Judy is neither an actual nor an apparent agent of the corporation.
UCITA says that by default a software developer or distributor is completely liable for flaws in a program; but it also allows a shrink-wrap license to override the default. Well, guess what. This is pretty close to the law as it now stands. Manufacturers of anything whatsoever are liable for any defect or flaw in whatever they manufacturer -- this is why "product liability lawsuits" are so popular with personal injury lawyers. And, yes, you can at least attempt to get the purchaser to waive this, although consumer protection laws generally forbid this for transactions involving consumers. The other point, I suppose, is that UCITA may be interpreted (as the author of the article suggests) that only a shrink-wrap license (as opposed to some other form of license) would be able to effect a waiver of liability. This might be too. The problem of liability for open source software has been with us for a long time, and basically has been ignored because it's very rare to see a product liability suit for software. I doubt UCITA will change the general tort principles that apply to such suits ("A law in abrogation of the common law shall be construed narrowly."), so individuals will still be able to argue assumption of risk (which is a damn good argument for free software; after all, you get what you pay for).
UCITA has another indirect consequence that would hamstring free software development in the long term -- it gives proprietary software developers the power to prohibit reverse engineering. Again, this is already the case. You can't use it if you don't have a license, and all they have to do now to keep you from reverse engineering is bury in the license "PURCHASER agrees not to reverse engineer the PRODUCT." By doing that it becomes a promissory consideration of the license, a breach of which destroys the license's consideration, making it revocable at will. Again, this is all common law. Don't need a statute for that. All a law that says the same thing will do is change the language used in the lawsuit. The only attack to a no-reverse-engineering provision in a current license agreement is unconscionability -- and if you win that you have to surrender your license and the fruits of your reverse engineering.
They could change the license retroactively at any time, and force you to delete the material if you don't accept the change. This would violate Article I, Section 10 of the United States Constitution. No state may pass a law which impairs the obligations of a contract which was lawful at the time it was entered into. UTICA cannot read provisions into license agreements which were entered into prior to UTICA's adoption: this would violate the sanctity of contract, which is something that American judges just won't accept. If the license you agree to allows for "retroactive changes" then, yes, you might be subject to them, but then you get into illusory contract doctrine -- and remember, "A statute in derogation of the common law shall be construed narrowly."
They could even prohibit you from describing what you see as flaws in the material. Unlikely. Such a term would be highly unlikely to stand as a in violation of public policy, that being free speech. In fact, in California it's probably illegal to sue someone for publically denouncing your software, because of SLAPP laws.
Of course, this is a secondary analysis from an article that was probably written without advise from legal counsel. I don't know where to find the text of this proposed law (was it authored by the American Law Institute like most uniform encodings, or is it a freelance effort?), so I can't give a more meaningful commentary.
Clickthroughs are already enforceable (there's a long line of cases on this) and the First Amendment makes it impossible to prohibit criticism of software (there's an even longer line of cases on that).
So I guess the real issue here is reverse engineering, and whether a contract which grants a software license in exchange for a promise not to reverse-engineer the software should be enforceable. Right now it is: contract law allows virtually anything except for that which "shocks the conscience." So a law which memorializes the common law may not be a step in the right direction, but it's not a step in the wrong one, either.
As to the poster who talked about "one-way" contracts: the problem is you need a license to use software. When you buy commercial software, you gain title to the "CD Coaster" and a license to use the software. Licenses are revokable at any time unless supported by consideration (which, in the case of a software purchase, is cash). When a license is supported by consideration, the license is revokable for breach of the contract of sale, and, as I mentioned earlier, the common law of contracts already allows virtually anything to be "consideration".
The real solution to this problem is to get Congress to amend the Copyright Act to make it clear that no license is required to USE software -- only to copy, distribute or modify it. This would make software more like a book. You don't need a license to use a book, after all.
Now, when you have a question about patent or trademark law, you have an authoritative place you can go for answers instead of guessing - or relying on opinions from people who don't necessarily know what they're talking about.
Actually, the USPTO is no more authoritative on matters of patent and trademark law than Joe Random Usenet Poster. If you want authoritative, you're going to need someone in a black robe. At best, what you get from the USPTO are the policies of the Board of Patent Examiners -- which can easily be overruled by the courts.
I started out in computer science too. And, yes, the lack of meaningful social interaction was a big part of my reason for changing out. Computers just aren't emotionally satisfying.
Supposedly, I'm a good programmer, but I just don't find it satisfying. So I'm going to be a lawyer instead. And in my spare time I'll do a little programming on the odd free software project, and get annoyed at all the whiny boys who think girls are only good for chasing.
Slashdot Mirror
I'd love to provide you with some clickwrap citations but I'd have to meander down to the law school to do it. My Westlaw access is off at the moment and it's 1:10 a.m. so I think the law library is closed for the night. However, the consideration in a clickwrap license is promissory (you promise not to do certain things as set forth in the agreement you averred to have read when you click "I agree"), in exchange for the offeror's consideration of a license. The assent is evidenced by the click. There is no obligation of disclosure in contract law except insofar as disclosure is required to avoid fraud (and when required by statute). Your comment that "you've already bought the software" is off-point, both because until you agree to the license all you've bought is an overpriced "CD Coaster" and because the UCC explicitly entertains the possibility of making a cash sale with undisclosed terms subject to the condition that the buyer can revoke the sale within a reasonable time (10 days, I think, but might be 3) upon discovery that the terms are unacceptable to the buyer.
I don't see where you get that UCITA attempts to allow people to be bound by contracts unaware. A term like the property transfer you sarcastically suggest would be roundly booed down by a court as unconscionable -- and any corporation that actually did that might actually face a derivative action from its shareholders for gross misconduct (the BJR doesn't cover rampant stupidity).
Perhaps someone could provide a clear pointer to the actual text of the UCITA -- I'd be real curious to see how they intend to abrogate the doctrines of assent and consideration, or where they think judges who will go along with it are to be found.
Shrinkwrap and clickthru licenses DO form contracts. There's a lot of caselaw to that effect. I posted a few citations on this here on Slashdot the last time this issue came up. Do a law journal search on "clickthrough" and you'll find HUNDREDS of law review articles that will discuss the issue to death. (My Westlaw access is currently suspended or I'd dig up a few cases on point.)
As I point out elsewhere, software authors are already liable for bugs in their software; as far as I can tell, UCITA doesn't change that except insofar as it makes explicit in statute that which is already true in the common law. As I understand it (on the limited information I have), all UCITA might do is discourage a court from refusing to enforce a waiver of liability provision on the grounds of consumer protection. A court could still choose to refuse to enforce such a provision because, for example, the court felt that the provision was not prominently displayed. See, e.g, Mundy v. Lumberman's Mut. Cas. Co., 783 F.2d 21 (1st Cir. 1986), or Henningsen v. Bloomfield Motors, Inc. 161 A.2d 69 (N.J. 1960). Henningsen is interesting because it's a case where someone attempted to waive product liability by a contract clause as permitted by a statutory scheme (similiar to what UTICA would erect) and the court refused to allow the waiver and held the seller liable because the waiver was not "prominent" enough. (This is why waivers of liability in most contracts are printed in all upper case. But that doesn't matter if they're at the end of the agreement in a scrolled window, unless you program your click through to ensure at least that the entire license gets displayed.)
Article I, Section 9 only applies to Congress (not the States), and further has been interpreted as only to have application to criminal law.
What? UCITA modifies the law of agency, too? Or did you not know that an employee of a corporation can only bind the corporation if she has actual or apparent agency, where actual agency is being actually authorized by the corporation to bind it, and apparent agency is appearing to a reasonable third person as being an agent of the corporation, able to bind it. Note: reasonable person, not reasonable computer. If Judy in the secretarial pool clicks on a click-through license, that won't bind the corporation to anything because Judy is neither an actual nor an apparent agent of the corporation.
Ok, I just read the article again. Let's see.
Of course, this is a secondary analysis from an article that was probably written without advise from legal counsel. I don't know where to find the text of this proposed law (was it authored by the American Law Institute like most uniform encodings, or is it a freelance effort?), so I can't give a more meaningful commentary.
Clickthroughs are already enforceable (there's a long line of cases on this) and the First Amendment makes it impossible to prohibit criticism of software (there's an even longer line of cases on that).
So I guess the real issue here is reverse engineering, and whether a contract which grants a software license in exchange for a promise not to reverse-engineer the software should be enforceable. Right now it is: contract law allows virtually anything except for that which "shocks the conscience." So a law which memorializes the common law may not be a step in the right direction, but it's not a step in the wrong one, either.
As to the poster who talked about "one-way" contracts: the problem is you need a license to use software. When you buy commercial software, you gain title to the "CD Coaster" and a license to use the software. Licenses are revokable at any time unless supported by consideration (which, in the case of a software purchase, is cash). When a license is supported by consideration, the license is revokable for breach of the contract of sale, and, as I mentioned earlier, the common law of contracts already allows virtually anything to be "consideration".
The real solution to this problem is to get Congress to amend the Copyright Act to make it clear that no license is required to USE software -- only to copy, distribute or modify it. This would make software more like a book. You don't need a license to use a book, after all.
Actually, the USPTO is no more authoritative on matters of patent and trademark law than Joe Random Usenet Poster. If you want authoritative, you're going to need someone in a black robe. At best, what you get from the USPTO are the policies of the Board of Patent Examiners -- which can easily be overruled by the courts.
After reading all these comments, what I want to know is, what is it all you boys are afraid of?
Being outprogrammed by a GIRL? Grow up.
I started out in computer science too. And, yes, the lack of meaningful social interaction was a big part of my reason for changing out. Computers just aren't emotionally satisfying.
Supposedly, I'm a good programmer, but I just don't find it satisfying. So I'm going to be a lawyer instead. And in my spare time I'll do a little programming on the odd free software project, and get annoyed at all the whiny boys who think girls are only good for chasing.