IP: Re: Time to bury proposed software law (: [risks] Risks Digest 21.41

[David Farber <dave@farber.net>]

>
>Date: Thu, 24 May 2001 16:39:58 +0100
>To: farber@cis.upenn.edu
>From: Jean Camp <jean_camp@harvard.edu>
>
>
>At 10:50 AM 5/24/01 -0400, you wrote:
>
>>>Date: Thu, 24 May 2001 10:33:49 -0400
>>>From: "R. Polk Wagner" <polk@law.upenn.edu>
>>>To: <farber@cis.upenn.edu>
>>>
>>>
>>>I teach UCITA to law students, and invariably many (if not most) in the
>>>class seem to conclude that the harsh criticisms of UCITA are unfair.  To be
>>>sure, there are a number of problems with UCITA, including its acceptance of
>>>software sales as a license, and its relationship with federal laws.  And
>>>those who hoped to use a law on digital contracts as a vehicle for extensive
>>>commercial regulation are going to be profoundly disappointed.  But a close
>>>look at the law reveals that the reality is something different from the
>>>rhetoric.
>Shocking really that the students you teach end up agreeing with you. 
>Never before observed in the classroom. <Sacasm off> A good professor 
>allows students to leave the classroom disagreeing because a good teacher 
>illustrates both sides. You are supposed to be teaching them _how_ to 
>think not _what_ to think.
>
>"Freedom to contract"  was widely investigated in other industries. It was 
>in fact the "freedom to contract" the reliability and strength of steam 
>vessels which lead to the first technology policy, consumer protection, 
>unions, safety laws, labeling requirements, and minimal standards for 
>food. What UCITA does is remove the option of governance from anywhere 
>_except_ the market. UCITA is also carefully crafted to harm free and open 
>software. The IEEE USA and USACM, not exactly bastions of 
>radicalism,  dozens of Attorney Generals and all consumer rights 
>organizations oppose it. The USA IEEE has been quite conservative in the 
>past, objecting only to the prohibition of research in the DMCA and coming 
>out for a stronger patent office on many occasions. Compare this to the 
>response to UETA which has been subject to few objections, and was 
>developed through a legitimate process. UCITA, for example,  allows the 
>negation of all consumer traditions of protection, and makes it possible 
>for a company to knowingly ship bad products. The UCITA process is amazing 
>in terms of the years spent attempting to subvert cooperative legal 
>processes developed over decades.
>
>I noticed you provided pointers only to the text of UCITA so here are some 
>pointers to analysis:
>http://www.cpsr.org/program/UCITA/ucita-fact.html
>http://www.ala.org/washoff/ucita/index.html
>http://www.gnu.org/philosophy/ucita.html
>http://www.ieeeusa.org/forum/grassroots/ucita/
>http://www.badsoftware.com
>
>Really Dave, I understand balance but this kind of argument is equivalent 
>to "the earth looks flat once you just look at it". It's beneath your 
>readers. There really is no debate in the legal and policy communities 
>about the value of UCITA. I would say it is less disputed than global warming.
>
>-Jean
>



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