1. What warranty protections exist for consumers who purchase software and other computer information products and services?
Currently, in the absence of UCITA and as far as I am aware, any and all existing consumer protection laws dealing with warranty protections apply to software purchased by consumers. However, many of consumers' rights under existing laws are waived by the shrink-wrapped license "agreements" that many software houses include with their products. Many states have laws that make such terms unenforcable, but many do not. I quote "agreements" above because in the vast majority of cases, consumers can not read the license agreement until after the software has been purchased, or in many cases, until the installation procedure has begun. In addition, many standard "shrink-wrap" or "click-through" licenses contain terms that many consumers will not understand, due to the use of legal jargon. Many consumers therefore do not even bother to read the license agreement, knowing in advance that it will not make sense to them. Software houses know this and exploit it, by putting grossly unfair terms in their license agreements that limit fair use and their own liability and responsibility to meet fitness of purpose expectations of the consumer.
This is a very important point. Once the software has been opened, many software vendors WILL NOT ACCEPT RETURNS of software, due to the perception that many people would sooner copy the software and return it so as to make use of the software, but not pay for it. The reality of it is that some consumers will take advantage of the opportunity to copy software in this manner, but most consumers pay for software that they use.
The effect this will have if UCITA laws are passed and enforced, is that then given that licenses are not viewable until the software is open, and software retailers will not accept returns of open software, consumers will be stuck with software that does not meet their needs and/or which may only be used under conditions which may not be acceptable to them, and without any means of recouping the loss of the cost of the software.
THIS IS EXTREMELY UNFAIR TO CONSUMERS!
2. What expectations do consumers have about reliability of software and other computer information products and services? Are these expectations met?
[It will take some explaining which will seem irrelevant, to get to the heart of this question and why it is relevant to UCITA. Please be patient.]
Actually the expectation of most consumers of software they have purchased is far too low, on average. For example, most computer users expect that their PC will crash in the middle of work they are doing an average of once a week to once a day. This is unacceptable, and consumers need to be educated that it is unacceptable. Proof that computers do not need to crash this often can be had in many places; for example, the software written for the space shuttle's control systems has proven to have zero defects, as reported in a story which can be read at this web site: http://www.fastcompany.com/online/06/writestuff.html
It has also been shown that several free, open-source operating systems (the software that makes computers work), such as Linux and FreeBSD, go much longer periods of time without needing to be rebooted, and which rarely crash, unlike many of the operating systems released by large commercial software houses, such as Microsoft.
So why do consumers have such low expectations of their software, and why do the commercial software houses not spend the time to make better software?
The answer is simple: profit. If commercial software houses spend the time and resources to engineer processes that will ensure higher quality software, they will be less profitable. Why shouldn't software houses bear the same burdens of merchantability and usability that vendors of other types of products bear? Would you keep a toaster that periodically failed to produce toast? Of course not. If your car stalled in the middle of the road once a week, or once a day, would you not expect your car dealer to make reparations? Of course you would. So why should it not be so with software?
As if the current situation weren't already unacceptable, my understanding is that UCITA proposes to further reduce if not remove all of the remaining liability from software houses that sell software which does not acceptably perform the task it was designed and intended to perform, and indeed to even work at all.
THIS IS EXTREMELY UNFAIR TO CONSUMERS!
3. What remedies are typically available to consumers if software or another computer information product or service fails to perform as the consumer expected?
These questions are more suited to being answered by a lawyer.
4. Are consumers able to comparison shop for different computer information products or services based on the terms of warranty coverage? Are consumers interested in doing so? Do manufacturers or sellers of software and other computer information products and services compete with each other on the basis of warranty coverage?
No, not generally. As with their license agreements, warranty information is generally not available until you have purchased the product and opened it, at which time the software retailer will often no longer accept the software for return, except for a new copy of the same software title.
THIS IS EXTREMELY UNFAIR TO CONSUMERS!
5. Do the current protections encourage efficiency in the timing, selection, and amount of detail in information conveyed to consumers?
No they don't, as I have outlined above.
6. Do existing laws and industry practices protect consumers in the event that software and other computer information products or services are defective? How often does this occur?
Not really. Frequently all that happens is that the consumer is bounced between various help desks at a company's support line. For example, a coworker once ran into a problem with Microsoft Office running on Microsoft Windows 95 where the software wouldn't load. My coworker was told that the problem was an operating system problem (Windows 95) by the first person he spoke to, and his call was transfered to a different department. Upon hearing the description of the problem, the new support person claimed it was an application problem, and was transferred back to the application support department. The third person he spoke to claimed that it was caused by a third-party application that was on the computer, and therefore would not be supported.
All of this time, my coworker was paying for support services with Microsoft, and they did not solve or even attempt to solve his problem. I use Microsoft as an example here, and extensively througout this letter, because they are a famous example of a software house that is renouned for this type of behavior, and because I have specific experience with their software. However, I do not mean to suggest that they are alone in this regard. Most other commercial software houses use similar anti-consumer licensing agreements, and release bug-ridden software not fit for its intended purpose.
UCITA does not do enough to protect consumers, and indeed would appear to weaken consumers' protections under existing law, by making click-through license agreements binding.
THIS IS EXTREMELY UNFAIR TO CONSUMERS!
7. What developments are underway by private or public entities at the international, national, state or local levels that would have an impact on consumers's rights in the context of transactions involving software or other computer information products and services?
UCITA is the most notable example of effort underway in this regard, as far as I am aware. However, a lawyer would be better suited to answer that question.
a. How would the proposed Uniform Computer Information Transactions Act (UCITA) affect consumers?
I have largely answered this above. However, an important addition to what I have already stated is that there exist other terms in standard click-through licenses that limit the fair use of a purchased software product. For example, a standard clause in Microsoft's click-through license is that you will not install the software on any more than one computer, even if you completely remove the installed software from the other computer first. Another common clause is that transfer of the software to a third party is prohibited. These terms are unfair to the consumer, and do not apply to any other form of intellectual property goods, such as books, magazines, video cassettes, etc., as far as I am aware. Why should they be permitted with software? There is very little difference between software and these other types of products. Often piracy concerns are raised, but software is no more or less pirateable than any of these other kinds of products. Technology exists which makes mass production of high-quality copies of all of these forms of intellectual property feasable. It makes no sense that software should be singled out.
b. What role, if any, would be appropriate for the federal government with respect to protecting consumers who purchase software or other computer information products and services? What role, if any, would be appropriate for state and local government? Consumer groups? Private industry?
Either state or federal government, preferably at the federal level so that such protections should be uniform across the 50 states, should draft legislation that prevents software houses from shirking the responsibilities that all other industries have to adhere to, namely that their products perform reliably, and meet the needs they are claimed or intended to meet. Additionally, consumers should be afforded the protection that if the software does not meet their needs, software retailers should be legally bound to accept returns of the software for a given period of time for a full refund of the purchase price. Software houses should also be liable to fix bugs in their software, if they detract from the usability of their software for its intended purpose, or if they prevent the reliable functioning of the software. These protections should be afforded to consumers regardless of any click-throughj licenses that should ship with the software.
If such protections are not afforded of the consumer, then unscrupulous software houses will be able to cut costs by providing shoddy software, and the consumer will have no recourse. Furthermore, more scrupulous software houses will be pressured to do the same, in order to remain competetive with those less scrupulous than themselves. This could be very bad for not just consumers, but the country as a whole, as the quality of our software will deteriorate, and competition from outside the U.S. will produce higher quality software, reducing both domestic and foriegn sales of U.S. software.
Effect of Mass Market Licenses on Warranty Protection
Many of the questions in this section are either already answered above, or better answered by a lawyer with relevant experience, so I have redacted them. There are a few which I wish to address, however.
8. What is the impact of characterizing a mass-market software transaction as a license as opposed to a sale of goods?
a. What is the rationale for such a characterization?
I can not fathom the rationale for such a characterization. What circumstances justify any consumer from not having as much control over how they use this type of product as any similar kind of product, such as a book, or a video cassette? Current shrink-wrap licenses raise serious questions about fair use. I recently heard about a license on electronic books for medical students which forces them to pay licensing fees for each year they are a student. Additionally, students who license this software and educational materials are prohibited from sharing it with anyone who has not paid the license fees. These agreements are apparently enforcable under the Digital Millenium Copyright Act. This is an abomination! This is precisely the sort of tyranny our founding fathers sought to shelter us from. I'm sure Thomas Jefferson is rolling over in his grave.
The company that is doing this is called Vital Source Technologies, and their product is called the VitalViewer. Their website is at http://www.vitalviewer.com/ however they have removed all information regarding their license agreements and company business plan after receiving (duly) harsh scrutiny by Slashdot, an interactive news website frequented by technology-minded professionals. The website is www.slashdot.org, and the article in question, with copious user comments, is at this URL:
It is crucial that the FTC take into consideration these issues as they impact the rights and needs of consumers, as well as the future of the software industry and thier implications on trade within and outside the U.S. The UCITA, like the DMCA before it, is very unfair to consumers, and threatens the freedoms and the technological and social progress of the people of the United States of America.