|From: Herbie Robinson
Date: Fri, Jun 30, 2000 5:10 AM
Subject: UCITA Comments
I am a Software Consultant/musician/recording studio owner. I operate in the business world as a sole proprietorship with no employees. As such, I both create and purchase software. My first two comments apply to the entire bill, including the warrantee section.
1. Too Complex
I read the UCITA document on your web site and a couldn't fathom it. I have never written a computer program that is that convoluted and I can't believe a document this complex will ever do what even the drafters intended. For example, if I draft my own mass market license containing the phrase "Production and releasing software to mass market distribution will indicate acceptance of these terms..." and send it to every vendor I buy software from it looks to me like sections 107b and 108a would make my agreement legally binding. I think we can be pretty sure that is not what the authors intended...
2. Impossible Compliance Burden
I own at least several hundred software packages (for both personal and business use). I am only one person. If I were forced to treat every shrinkwrap license as being legally binding, I would spend so much time on contract compliance that I would not have time to do any work. I think any sort of shrinkwrap license puts an unconscionable burden on individual consumers and small businesses. It also imparts a significant expense on large businesses. I think ONE STANDARD shrinkwrap software license would be wonderful (I currently adhere to fair use copyright principals as best as I understand them, but there are some grey areas regarding the limits of person use when a one person business is involved -- it would be nice to have this spelled out).
You asked in your notice "Are consumers able to comparison shop for different computer information products or services based on the terms of warranty coverage?" The ones I have read have all been too full of legal jargon to be understandable and don't address the question of real importance: How good is the company's support going to be in the long haul.
"Are consumers interested in doing so?" This one isn't as they exist in current shrinkwrap licenses or in UCITA.
Do manufacturers or sellers of software and other computer information products and services compete with each other on the basis of warranty coverage? In a way, yes, but they compete in terms of "support quality", not warrantees. This is much more prevalent in high end business computing than mass market, shrink wrap, software.
It's also very hard to define.
3. Software is Different
Treating warrantees for mass market software the same as warrantees for hard goods is not appropriate. For example, the best warrantee a purchaser of mass market software can get is that the manufacturer stays in business and keeps supporting the product with bug fixes and enhancements. I think the public would be best served by the following:
There aspects of software which make it different from hard goods are:
4. Copy Protection
Many mass software vendors use copy protection to ensure people stick to the vendor's definition of fair use (whatever that may be). Most of these schemes have become fair to consumers over the years due to pressure from some of the more ethical computer press people, but a lot of companies in niche markets (recording studio software for example) take advantage of the fact that purchasers become locked in and have very unfair copy protection policies (which the users usually don't find out about until a disk goes bad and they need a new copy of the software key). The vendors should be required to bear all expenses related to maintaining copy protection: They should be required to do this forever or until they put out a non-protected version of the program in question.
5. Existing Protection
"Do existing laws and industry practices protect consumers in the event that software and other computer information products or services are defective?" They haven't done well by me, but you aren't focusing on what really caused pain:
Products becoming unsupported when I already had a lot of my own data for them.
Companies changing their copy protection policies making it too risky to continue using the product.
"How often does this occur?" Not that often, but about $1200 for two software products, in my case. The reality is that consumers are completely at the mercy of the vendors once they have used the product for a month or two and become dependent on it for manipulating their data.
6. UCITA Impact
"How would the proposed Uniform Computer Information Transactions Act (UCITA) affect consumers?" It is impossible for me to keep track of hundreds of different software licenses. I will be forced to either unknowingly violate the law or go out of business.
7. License vs. Copyright
"What is the impact of characterizing a mass-market software transaction as a license as opposed to a sale of goods?" This strikes me as an attempt by large manufacturers to make the transactions completely one-sided. They give up almost nothing from the warrantees implied by UCITA (most computer hardware and software comes with a no-questions asked money back warrantee anyway and it takes so long to really figure out you've bought a turkey that no traditional warrantee is going to change things much). What they get from UCITA is to write up a legally binding license of their own choosing that includes such things as gag orders forbidding public criticism of the software (i.e., preventing consumers from warning other consumers about sub-standard products).
8. Public Forum
Which interests should be represented at the Commission's initial public forum on "Warranty Protection for High-Tech Products and Services?"
Individual consumers who purchase a lot of software small business owners information system managers from non-computer companies