UCITA and the End of Freedom of Speech

Stephen Yagielowicz

A recent article at XBiz entitled "Boycott Microsoft" that dealt with the author's disdain for Windows XP's End User Licensing Agreement (EULA) provided a forum that re-ignited the often passionate (and often irrational) chorus of debate streaming from both sides of the Microsoft camp. On one side are those that consider MS to be the work of the Anti-Christ, while on the other side, are those who find their tools to be the best solution to their needs.

While this is all well and entertaining, and a battle that has been waged many times before, I'd like to go off on a bit of a tangent today, and tell you about a piece of legislation that would take away your current right to publicly criticize Microsoft, or any other software vendor for that matter, - as well as dramatically curtail your rights and expectations regarding informational, educational, and entertainment media technologies.

The Uniform Computer Information Transactions Act (UCITA), is an evolving contract law statute billed as a "cyberspace commercial statute," and designed to foster a uniform, commercial contract law for products like computer software, data and databases, multimedia productions, and nearly all 'online' information.

Covering modern software contracts generally known as "shrink-wrap licenses," UCITA is an outgrowth of several previous proposals, including the UCC, or The Uniform Commercial Code, which is a product of the American Law Institute and the National Conference of Commissioners on Uniform State Laws (NCCUSL).

According to the NCCUSL Web site, "The National Conference of Commissioners on Uniform State Laws (NCCUSL) is [an] organization: comprised of more than 300 lawyers, judges and law professors, appointed by the states as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands, to draft proposals for uniform and model laws on subjects where uniformity is desirable and practicable, and work toward their enactment in legislatures."1

While on its surface, almost any proposed statute that provides a degree of legislative and judicial uniformity (especially in today's 'borderless' economy) seems a beneficial development for both the operators of those businesses affected by the statutes, as well as for the consumer's of their products, such is unfortunately not always the case, and indeed, a widespread opposition to the UCITA and other similar proposals does exist.

According to the Computer Professionals for Social Responsibility, UCITA opponents including 26 State Attorneys General (Arizona, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Maryland, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Tennessee, Vermont, Washington, West Virginia, and Wisconsin), the Association for Computing Machinery, the Consumers Union, the Society for Information Management, the American Libraries Association, and Americans for Fair Electronic Commerce Transactions (AFFECT), all oppose the statute on the basis that it "gives software manufacturers and information services an unfair advantage and leaves consumers with very little recourse when they find themselves with bad software."

This opposition is due to the facts that UCITA allows software publishers to change the terms of the contract [EULA] after purchase, allows restrictions that would prohibit users from criticizing or publicly commenting on software they purchased, allows software and information products to contain "back door" entrances, potentially making users' systems vulnerable to infiltration by unauthorized hackers, and allows software publishers to sell their products "as is" and then to disclaim any liability for product shortcomings.2 This will prevent critical reviews of software from appearing in newspapers or magazines making it harder for consumers to find out if software works correctly before they buy [it].

For further, extensive information on UCITA's negative aspects for consumers, and the degraded protection against poorly designed software that it offers, read Proposed Uniform Computer Information Transactions Act (UCITA):Objections From The Consumer Perspective written by Jean Braucher, and Roger Henderson, Professor of Law, University of Arizona.

For the short course, here's "Five Reasons Consumers Oppose UCITA," by AFFECT3

1) UCITA allows software publishers to sell software "as is"; as used cars are sold in some places, meaning there is no warranty that it works right or that you can get your money back if it does not.

2) Many licenses require consumers to get notices from a software publisher or on-line service. Those notices may change the terms of the software or access license. UCITA allows the notice to be "received" by a consumer if the notice is only posted on a Web site, or by e-mail with no guarantee that it was ever read or even received.

3) If the consumer wants to sue over bad software or over a bad on-line service, UCITA allows the software publisher or Internet service to restrict legal action to a specific jurisdiction -- a particular state, or county -- and in some cases different countries.

4) UCITA allows the consumer to be trapped into agreeing to all of this after the consumer buys the software or on line service and before the user can even load the software to determine if it's what he or she wants or if the software works. Under UCITA these provisions may be placed in the boilerplate fine "print" that the consumer sees for the first time only after the consumer buys the software and takes it home (or downloads it), unwraps the box, puts the disk in the computer and starts loading the software. It is only then that the consumer will be given the opportunity to understand the rules and contract provisions that the courts will enforce.

5) UCITA allows the software license to say that the software cannot be reviewed by a magazine or newspaper without the software publisher's permission unless and until the courts find such a provision to be unenforceable! Even then UCITA allows the provision to remain in the contract! This will prevent critical reviews of software from appearing in newspapers or magazines making it harder for consumers to find out if software works correctly before they buy the software.

Regardless of the final disposition of this statute, it provides an indication of the thinking inspired by well-connected lobbyists whose patrons wish to see an end to all open, public criticism of their product's shortcomings, as well as their business practices. So go say what you want about Microsoft - but do it quickly, because tomorrow you may not have the chance! In the meantime, I'll go back to work on my trusty Windows XP powered laptop: ~ Stephen


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