Date: Thu, Sep 7, 2000 7:13 PM
Subject: UCITA

FTC members,

UCITA is a terrible act to foist on the American public and solidifies heartless trends in the software industry to remove all liability from the vendor and restrict the consumer's rights and ability to use computers and software in every way the vendors can imagine for the sake of their gain of our dollars and the control of our lives.

Microsoft, for example, already weak warranties and licensing terms, and supports UCITA. Those of other software vendors and Microsoft currently provide pitifully few consumer protections. Providing Microsoft and other vendors the authority to disable personal and corporately owned computers remotely violates constitutionally protected rights. It impacts 4th amendment due process, the rights to privacy, and hands over the front door keys to consumer and government's PC's to the vendors to enter at will. This whole act is the radically opposite direction from that which we need to go. Consumers need far more protection from the software snake oil vendors than we have now. Vendors are already surreptiously violating consumer privacy by having their software report all manner of personal information back to the home office when ever the owner logs on to the internet.

This act is like giving FORD the right to remotely detonate your tires and disable your engine if you start to drive your FORD on to a non FORD service center/dealer's lot. It's like giving FORD the right to refuse to let you sell your vehicle to anyone they are displeased with. It's like FORD telling you it's not legal to put any tires on your vehicle but Firestone ATX's. It's like FORD telling a purchaser they cannot speak about their blown up tires or faulty engine when they fail. And FORD would not be liable for any damaged caused by their triggering the tires or disabling the engine, even if disastrous effects result. It's like FORD telling you that even though you paid for this vehicle, it's really on loan to you until you do something they feel is improper, at which time they can reposess it. And, FORD wouldn't have to tell you any or all these terms until you have started the vehicle and have headed down the road. Can you imagine any FORD sales person advising that 'I don't have to tell you the terms of the warranty until you've bought the car.' Makes comparing FORD to CHEVY a bit tough. Plus FORD can change the terms of usage and service after you've started up the vehicle. It would be frightful for the owner of the FORD to turn the key and be presented with an ever changing EULA each time the car is started.

The other restrictions in UCITA, if applied to cars, would be like telling the customer they can't open the hood, they can't replace parts themselves, they must pay a fee to keep the vehicle operational, and that fee which can be adjusted at anytime. And they can't use competitors products in the car.

From where I sit, 99% of the legal text in a typical current EULA already seems to be there to protect the vendor from any obligation to the consumer related to the software. They take great pains to state in the small print that the operating system and applications cannot be counted on for anything, and they no longer even offer to refund the cost of media. Most of the recent EULA texts make software not truly owned by the consumer once purchased. Even if legal language was in the EULA, vendors can fail to honor it with impunity. For instance, Microsoft never honored it's software refund clause for unopened Windows software and eventually even removed that. It told consumers to go to their vendors who told them to go to Microsoft. Nobody was responsible and courts are protecting Microsoft and other vendors from being prosecuted due to these heartless license terms. UCITA makes it even less likely a vendor will ever be deemed responsible for a thing.

In the last year, Microsoft began having PC vendors go to the point of shrinkwrapping the entire hardware/software PC package so consumers had to agree to the Microsoft license before opening the packaging to get to their PC, it is on the box. Legally this means I'm violating license to run any non-Microsoft operating system on the hardware I paid for. Microsoft under UCITA would be within rights to try and remotely sniff out and kill the machine's operating system if not running a Microsoft OS. This is possible, if it could determine from the PC's CPU serial number and MAC address that it at one time had a Microsoft OEM OS on it and be able to compare against a manufacturers list of serial numbers as a matter of contract enforcement.

I strongly urge the rejection of UCITA and the adoption in its place a far more consumer friendly act. UCITA leaves consumers owning nothing, vulnerable to corporate raids from the internet and corporate sponsored FBI confiscation assaults through the front door of minors, all for poorly performing software that isn't guarenteed to do a darn thing anyway.

Software vendors hype their great advances in their latest and greatest object oriented technology. They should be considered to be making software appliances that should work together like modular power ratchet wrenches. If this software widget fails to work as advertised, they should be liable. If another vendor's widget works better, I should be able to drop it in without a problem. If it's failure causes damage, they should have liability insurance that pays for it like other industries have to obtain.

If we make the wrong software purchase, we have little or no recourse under UCITA other than to go out and spend money again. Their won't be any terms to return it under 'once the seal is broken'. Of course if one vendor determines that running a competitor's product on their machine is a violation of their exclusive UCITA contract, after I've purchased and attempted to use their bad software, they can shut my system down.

At this point, I'd rather have a Ford Explorer with a 12 month warranty than a Windows Explorer with consumer hostile UCITA warranty. However, as vehicles become more computerized and get wireless communications, I'm afraid someday I'll be having to choose between a Microsoft FORD and Microsoft CHEVY that has no warranties and is likely to make the blue screen of death the red windshield of death. Please don't let UCITA out of the legal garage!

Think about this: no company can offer to insure computers from operational hazards since no vendor offers terms under which they can be legally liable for anything. Will UCITA make this more or less likely. We can still get home and car insurance, at least until we get to the point of having to chose from Microsoft Car, Van or Truck and Home.

Are the UCITA sponsors the type of good corporate citizens we need to have in the USA? Or is this just another global grab by the billion dollar companies? If they wish to operate in the USA, they should behave like model citizens, be accountable like citizen consumers are, and be subject to our constitutional form of government. I can't support any law that restricts 1st and 4th amendment rights to say a software company has invaded my PC and wronged me without liability.

If software that was running an sophisticated medical apparatus and was shut off in mid-procedure by the vendor, because somebody in purchasing didn't send the right amount on the check soon enough, or a doctor found an unanticipated life-saving usage for it that was not specifically spelled out in the contract, will we say, too bad to the patient's family, that's just UCITA for you?

We need new consumer protections from the shell games software vendors already play with us. Please reverse the horrible directions things are going with software vendors writing all the legislation affecting consumers and lining legislator campaign troughs.

Thanks,