IP: UCITA

[Dave Farber <farber@cis.upenn.edu>]

>
>         From http://www.badsoftware.com/networld.htm
>
>Bad Software: What To Do When Software Fails.
>
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>  Cem Kaner, Ph.D., J.D.                             P.O. Box 1200
>  Law Office of Cem Kaner                            Santa Clara, CA 95052
>  kaner@kaner.com                                    408-244-7000
>
>Op-Ed in Network World
>
>Delta: Legal issues
>
>Head: UCITA: a bad law that protects bad software
>
>Byline: Cem Kaner and David L. Pels
>
>Published in Network World, Copyright (c) Network World 1999
>We (Kaner and Pels) can authorize you to quote from this paper, but if you
>quote more than a "fair use" amount, PLEASE acknowledge that you are
>reprinting material from this paper, that it was first published in Network
>World, and that it is reprinted with permission.
>
>
>At this point in your career, you?ve probably encountered more than your
>fair share of software that suffers from poor documentation, inadequate
>attention to interoperability and known bugs. If so, you need to know about
>the Uniform Computer Information Transactions Act (UCITA), , which software
>publishers are pushing in order to head off lawsuits from unhappy customers.
>
>Under UCITA, software publishers have no duty to check their products for
>viruses. Furthermore, vendors can avoid paying for damage caused by a virus
>by including a simple disclaimer of implied warranties, which you don't even
>see until you?ve bought and installed the product. (No other industry in the
>U.S. gets to enforce post-sale warranty disclaimers.)
>
>In addition, UCITA:
>
>    * Redefines "material breach of contract" to make it harder to return a
>      defective product. Software publishers are allowed to include a clause
>      in the contract (which you never see before the sale because it?s
>      contained within the shrink-wrapped package) that says you cannot
>      cancel the contract and demand a refund even if the product is
>      worthless.
>    * Lets software publishers charge users a non-refundable per-minute fee
>      for tech support, even for defects that were known at the time of
>      shipment.
>    * Authorizes restrictions that make it harder or impossible for customers
>      to obtain third-party maintenance (such as for fixing Y2K-related bugs,
>      even if the original vendor is too busy to help you in time) or to
>      transfer packaged software (when company X is sold to company Y, Y may
>      have to pay new license fees for each copy of each piece of software on
>      X?s machines).
>    * Authorizes "time bombs" that automatically shut off the software at a
>      given date, unless a license renewal fee is paid and registered. UCITA
>      also allows a vendor to send a message to your computer that shuts down
>      your copy of its software, possibly shutting down your business at the
>      same time. You can collect damages if the vendor sends the message in
>      error, but only if you respond to a warning message from the vendor in
>      just the right way.
>
>For more on UCITA's impact on business customers, read the Society for
>Information Management's white paper (on Article 2B) at
>www.simnet.org/public/ucc.html.
>
>Not surprisingly, even though a typically neutral and well-respected
>legislative drafting organization, the National Conference of Commissioners
>on Uniform State Laws (NCCUSL), is officially writing UCITA, the
>open-to-the-public drafting meetings have been dominated by lawyers
>representing publishers.
>
>We started attending these meetings three years ago, seeking compromises to
>reduce customer risk without imposing hard-to-manage risks on publishers.
>There have been big clashes and loud debates, but often it's the little
>things that tell you about the people you're negotiating with. For example,
>in a meeting a couple of years ago, one of the 10 NCCUSL members made a
>comment about user errors made by "dumb customers." A lawyer representing
>several publishers replied, "Dumb customers? That's redundant!" Almost
>everyone in the room seemed to think this was hilarious.
>
>Until recently UCITA was called Article 2B and was a proposed amendment to
>the Uniform Commercial Code (UCC). All amendments to the UCC are
>co-sponsored by the American Law Institute (ALI) and NCCUSL. Last year, the
>ALI called for "fundamental revisions" in Article 2B. On April 9, the ALI
>withdrew from the Article 2B process, so 2B cannot amend the Uniform
>Commercial Code. NCCUSL renamed 2B UCITA and is now carrying UCITA on its
>own.
>
>The last publicly open Article 2B / UCITA drafting committee meeting was
>held in February. At the NCCUSL national meeting in Denver this July,
>ArticlUCITA will be submitted for approval. If it passes there, it might go
>to the state legislatures as early as October. And if UCITA passes in a few
>states, publishers will be able to make it the law that governs their
>contracts in all states.
>
>Writing a law that makes it almost impossible to sue software publishers for
>defects is a poor way to manage the escalating level of software customer
>dissatisfaction with bad software and bad support. But without opposition
>from more businesses, that law will pass.
>
>If you want to have your say about UCITA, here are some things you can do:
>
>    * Send a letter to Gene Lebrun, President of NCCUSL, P.O. Box 8250, Rapid
>      City, SD 57709. E-mail can be sent to >      City, SD 57709. E-mail can be sent to glebrun@lynnjackson.com. Please
>      send a copy to >      send a copy to kaner@kaner.com.
>    * Attend the national meeting of NCCUSL in Denver, July 23-30. For more
>      information, see www.nccusl.org.
>    * For UCITA status reports and other suggestions, check our website at
>      www.badsoftware.com.
>
>Kaner is a Silicon Valley-based attorney and software development
>consultant. Pels heads customer operations and support for the
>high-technology division of a leading automotive diagnostics company. They
>are the authors of Bad Software: What To Do When Software Fails (John Wiley
>& Sons, 1998). They can be reached at >& Sons, 1998). They can be reached at ucita@badsoftware.com.
>
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>[ Main | List of Articles | Bad Software | UCC 2B | Law of Software Quality
>| Digital Signatures | Bookstore | Court Cases | Links | Press Releases |
>About Us | What's New ]
>
>The articles at this web site are not legal advice. They do not establish a
>lawyer/client relationship between me and you. I took care to ensure that
>they were well researched at the time that I wrote them, but the law changes
>quickly. By the time you read this material, it may be out of date. Also,
>the laws of the different States are not the same. These discussions might
>not apply to your circumstances. Please do not take legal action on the
>basis of what you read here, without consulting your own attorney.
>
>Questions or problems regarding this web site should be directed to Cem
>Kaner, kaner@kaner.com, P.O. Box 1200, Santa Clara, CA 95052.
>
>Last modified: July 25, 1999. Copyright © 1999, Cem Kaner. All rights
>reserved.