Line in the Sand

Week of 26 February 2001

Get It Try It

There is a line in the sand, and it is growing easier to see and harder to ignore by the day. There is a war brewing, a war between software consumers and concerned software vendors on the one side, and Microsoft and the SIIA on the other. The war is called UCITA.

UCITA is a proposal for a uniform software consumer legislation which has already been adopted by Maryland and Virginia. Other state legislatures may soon adopt it as well.

With UCITA your consumer rights will no longer apply, because these rights apply to goods you purchase. Under UCITA, you will no longer be the owner of a piece of software; you will only acquire a license to it. And a very limited license indeed.

Even today software consumers only get to see their legally binding end user license agreement (EULA) after they have made their purchase. Although several major vendors have been asked to publish their EULAs online so that prospective consumers can view these terms prior to purchase, none have agreed to do so.

And even though you don't get to see how you've been screwed until you shell out your hard earned cash, you're still screwed. Most of the terms are in fact legally binding and if the software vendor should choose to take you to court over a breach they would most likely win.

EULAs today regularly point out that consumers do not own the products they are purchasing, but are only licensing them; UCITA will make this uniform and legal. And what holds in the United States will most likely hold in the rest of the world.

While many EULAs of today are implemented to protect ISVs from costly lawsuits, assuming that ordinary consumer legislation still applies, the very nature of these EULAs will change radically upon the adoption of UCITA.

A few of the finer points of licensing as projected by UCITA:

1. As the rule of ownership will no longer apply, you will not be permitted to sell your software to a third party. The age-old classifieds stating 'Super box with Microsoft Windows 98 MS Works Encarta' will become illegal.

2. Merchantability will go out the window. Your software vendor will be able to state unequivocally that what you have just licensed may very well be good for nothing at all - you will still not have the right to redress them for failure in the product.

3. Licenses may very well apply to only one machine, one person, and a single install. You may not even be legally able to give an old box with an old Windows away.

4. UCITA will enforce what is euphemistically called 'self-help', meaning any method chosen at the vendor's discretion for disabling your software by remote control, such as through email.

5. Your EULA might not even be included in your software package; it might be emailed to you; and whether you receive (and are actually able to read) this EULA will be a moot point: Its receipt by your email domain (and not by you) will be sufficient to establish your culpability.

(Want even more? Click here.)

Software consumers are increasingly aware of the bugginess and bloatedness of applications they have 'purchased'. Again and again, despite what Bill Gates claims to not be aware of, these consumers have returned to their retail outlets sorely disappointed, only to be told by the clerks that they will have to wait for the next release to be rid of the nasty bugs and get improved performance.

When United States consumer law is otherwise so radically different (yet relatively weak when compared to many other countries), how could things reach such an unlikely and outright ridiculous impasse? How could several states already be considering adopting UCITA as their norm?

It is certainly not for lack of opposition or the mustering of the forces of it. The ACM is dead set against UCITA; so is the IEEE. In fact, the only major proponents (and, curiously, the only 'consultants' the drafting board have chosen to consistently listen to) are the former SPA - and Microsoft.

Way up in the Northwest the Monkey Moguls are putting the final touches on a new plan. What they are attempting to do is turn the clock back to the early 50's when purchasing was impossible, monopoly the norm, and infringements of consumer rights widespread.

The companies responsible back then paid for their sins; markets were opened up; licenses were enforced as purchases. Not all the transgressions ceased, but things did get significantly better for the great majority of consumers. And all these years, we all have assumed that those bad times have been behind us once and for all.

At the same time, the outcropping of 'free' operating systems with free shells and free software continues to grow. User friendliness becomes more and more a reality for even the end-user on these UNIX derivatives.

Price and performance are two areas where the free software movement has the Wintel world beat. With several hundred thousand testers and league after league of coders, their products are always going to be more stable and robust than that of any vendor corporation, no matter their investment in human resources. The Halloween Documents, smuggled out of Redmond Washington, attest to even Microsoft's awareness of this impossibility. Yet corporations like Microsoft continue to expect software consumers to shell out money for products that are often inferior to their free counterparts. Apache is the most used Internet server in the world, and it is the best and most stable as well, and it is free. Linux and all its distributions are free. The GNOME and KDE shells are free. XFree86 is free. NetBSD is free. These are all highly portable operating systems and shells supporting far more platforms than even David Cutler had envisioned. And very often they are faster, leaner, meaner and more robust. All that has been lacking up to now is user savvy and user friendliness. The geeks have long since abandoned Wintel in favour of UNIX; to the extent that useful user friendly applications adhering to de facto standards will emerge we can expect to see more and more ordinary 'dummies' achieve 'geekdom'.

What is so curious in all of this is that Microsoft - and Bill Gates and Steve Ballmer and the meanies of the SPA - don't even try to compete or address this growing threat: They simply move in the opposite direction instead, creating a line in the sand which, sooner or later, will grow so wide and so obvious that anyone caught in the middle will perish.

The radsoft.net XPT EULA is currently undergoing modification for the 2001b Release (1 July 2001) to counteract any effects of the adoption of UCITA.

http://www.consumerlaw.org/ucita/twelve_problems.html
http://www.ieeeusa.org/forum/POSITIONS/ucita.html
http://www.troubleshooters.com/ucita/greedware.htm
http://www.ucita.org
http://www.zdnet.com/eweek/stories/general/0,11011,2658175,00.html