Software Contract Law

[Dan Emory <danemory@xxxxxxxxxxxx>]

Below is an extract of an article that appeared in the 4 February issue of 
the Los Angeles Times.. The full article is available at:
http://www.latimes.com/news/front/20000204/t000011344.html
Note that, among other things, it would prohibit license holders from 
making negative comments about the software products they purchase.
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Microsoft Corp. and other powerful software companies are quietly pushing 
state legislation across the nation that would dramatically reduce consumer 
rights for individuals and businesses who buy or lease software and 
database information.
The push comes as software companies are beefing up their lobbying effort 
to pass favorable laws while their industry is at peak popularity among 
politicians who want to keep their local economies booming, consumer groups 
say.
"[This] is an example of newly powerful software giants using the promise 
of high-tech jobs to push through legislation that restricts consumer and 
business-customer rights," said James Tierney, former Maine attorney 
general, who opposes the effort.
The tech bills spring from a proposal with an arcane name, the Uniform 
Computer Information Transactions Act (UCITA). Should states pass this 
legislation, the impact on consumers would be dramatic:
* If customers fall behind on fees or software lease payments, sellers 
would have the right to reach into customers' computers and remotely shut 
off programs.
* The UCITA bills include a provision that e-mail could serve as formal 
legal notice of everything from a change in terms of the contract to a 
warning that service will be cut off, all without any evidence that the 
e-mail ever reached an individual.
* The fine print of nondisclosure clauses in software packages could be 
used by software makers to block the publishing of reviews of their product.
"'We already see software licenses that purport to ban publication of 
critical articles," said University of Arizona law professor Jean Braucher. 
"UCITA would increase this sort of chill."
* Most software sales would be redefined as licensing agreements, giving 
software makers the power to set terms forbidding the future sale or even 
donation of the material.
"It might even mean I can't donate my old computer to my kid's school 
without taking off all the software,"' said Gail Hillebrand, senior 
attorney of Consumers Union. Hillebrand said the tech legislation would 
drastically weaken the most basic consumer protection laws.
One of the tech bills is expected to be introduced soon in California. 
Other UCITA bills are already before state legislatures in Maryland, 
Virginia and Illinois.


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| Nullius in Verba |
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Dan Emory, Dan Emory & Associates
FrameMaker/FrameMaker+SGML Document Design & Database Publishing
Voice/Fax: 949-722-8971 E-Mail: danemory@primenet.com
10044 Adams Ave. #208, Huntington Beach, CA 92646
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