MS-backed US law could destroy consumer rights to redress

[Troy Johnson <john1536@tc.umn.edu>]

Interesting news...

http://www.theregister.co.uk/990513-000011.html

  Posted 13/05/99 9:12am by Graham Lea

  MS-backed US law could destroy consumer rights
  to redress

  Microsoft is backing awesome legislation which absolves software
producers from
  virtually all liability for their products. Even if it's shipped with
a virus, doesn't match a
  demo, is just plain defective, or so bug-ridden it's unusable,
American consumers will
  have no right of redress under the proposed rules. 

  Microsoft's EULA (end user licence agreement) is draconian enough, and
experience
  has already shown that refusal to agree to it does not readily result
in a refund for the
  software product. But what's in the wind is far worse. 

  The US Uniform Commercial Code (UCC) defines fair trade practices
across US
  states, but Article 2B, now in draft and which covers all software
sales, licensing,
  support and maintenance contracts, is seriously slanted against
consumers. It
  effectively removes from software producers any responsibility for
their duff software. 

  And apparently Microsoft thinks the open software movement will have
to support this
  restrictive approach. A paper on copyleft (as it is called, to
distinguish open products
  from copyrighted, proprietary ones) by Microsoft lawyer Robert
Gomulkiewicz, who is
  chairman of the UCC 2B working group of the Business Software
Alliance, has just
  appeared in the Houston Law Review. In it, he examines why, in his
view, the open
  software movement will need to rely on Article 2B and so become like
proprietary
  software developers. 

  After a contorted argument that tries to set out why open source
licences are unlikely
  to succeed, he goes on to claim that Article 2B will be necessary. The
result is likely to
  be, he apparently believes, that open source developers will end up
playing by the
  same rules as the Microsofts of this world. 

  The drafting of Article 2B is being done by the National Conference of
  Commissioners on Uniform State Laws, and the American Law Institute.
Some
  commissioners now recognise that the proposed law is not balanced, and
the ALI has
  passed a resolution that it should be fundamentally revised. 

  However, there are strong forces pushing it, and the present version
may find its way
  to state legislatures either later this year or early next year. 

  There is an active campaign against the present form of Article 2B,
spearheaded by
  lawyer Cem Kaner (summarised in his book Bad Software [Wiley, 1998])
and
  supported by consumer advocate Ralph Nader amongst others. The problem
has
  been that Article 2B drafting (there are 200 pages of it) has been
carried out by
  publishers, with no input from consumers, and has become extremely
unbalanced. 

  By and large, US law of this type tends to find its way into other
countries - or US
  companies try to insist that a contract is drawn up under US law. This
should be
  resisted. The US has already unilaterally extended intellectual
property law by granting
  absurd patents for software. It is time for the European Commission to
produce a
  useful Directive, instead of some of the nonsense we read about, to
deny recognition
  of US software patents in Europe. Of course, software companies claim
that there is a
  great deal of piracy, and produce unfounded claims as to its volume.
We have
  become mightily suspicious of these headline-grabbing claims, and
suspect that
  piracy is at a very much lower level than is claimed. 

  Gomulkiewicz argues that the most effective way of protecting open
software is to
  embrace it with the same laws that are used for proprietary software,
which is likely to
  have the effect of suffocating it. 

  Microsoft is not alone in pressing for this legislation: all
proprietary software
  companies want it, since it will give them indecent powers and take
away reasonable
  rights from consumers. The consequences, should Article 2B be enacted,
will be to
  confirm and to provide legal protection for a licensing model that
limits users' rights,
  and allows publishers to introduce non-negotiable terms that are
unlikely to be known
  (and certainly not understood) before the sale has been made. 

  Even worse: the terms can then be enforced against the purchaser. 

  Article 2B is fundamentally flawed, and Microsoft's interest in it
does not bode well. If it
  is allowed to continue unchecked, the losers will be consumers, and
quite likely the
  open software movement if Gomulkiewicz is right. 

  One effective remedy that could be used by Judge Jackson if he rules
against
  Microsoft would be to ensure that Microsoft is not allowed to get away
with selling
  upgrades until a previous version functions properly. But Microsoft is
well aware that
  Article 2B is probably a defence against any such remedy.