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PCs for Kids & UCITA

Week of August 21, 2001

This is a rough one. Make no bones about it (lovely expression that).

The recap in brief:

  • PCs for Kids is an Australian charity. It is one of four that gather used boxes and give them to underprivileged children. Sounds fine.
  • PCs for Kids is the only one using MS Windows. The others run Linux. Linux is free. Windows is not.
  • No matter that the Windows on these used boxes is also used, Microsoft wants new license fees from PCs for Kids for the boxes they donate to the underprivileged children.
  • Microsoft has agreed to reduce their license fee from 200 ($300) to 60 ($90) per box, but PCs for Kids is not giving in. They want Windows for free because it, like the box itself, has already been paid for. Microsoft says no: Pay up, or go to court. PCs for Kids has no money to go to court.

That's the recap.

ZD Australia has been all over this one, as has Kieren McCarthy of The Register. Opinion is high in OZ on the side of PCs for Kids; Kieren is not so sure. In an article published 21 August 2001, he seems to be taking the side of Microsoft - or at least warning PCs for Kids to take it easy. The licenses, Kieren claims, are site licenses, and so Microsoft is fully within its rights to demand a new fee from the charity.

Kieren also points out quite accurately that Microsoft is not exactly worried about its image in the debacle: They're rotten scoundrels, they know it, the world knows it, and they've become the rich rotten scoundrels they are by sticking to their guns in situations precisely like this.

Microsoft can't really afford to start making any exceptions with its license approach. This is exactly what has made Microsoft so rich and powerful. It has gone so ballistic with its pirate software crusade that some people are even beginning to care about it. It can't afford to lose face and it is not scared of bad publicity when its mind is made up.

PCs for Kids is obviously hoping to shame the Beast into making an exception in its case, but the likelihood of this happening is very slim. If the charity is then left unprotected to MS' lawyers, it will regret ever trying to bully the bully.

The United Kingdom was recently assailed by the William H. Gates 3 publicity engine. Go into any Tesco or Sainsbury and you'd be given lovely coupons by your cashier after your purchase. These were computer coupons and could be donated to the school of your choice. The punch line was that this was Bill Gates himself financing computers in the British schools.

Libraries across America have seen their computer resources replenished beyond their wildest dreams, with brand spanking new super-boxes replete with special Bill & Melinda Gates Foundation mouse pads.

The millions being spent on PR in both the UK and the US are wasted if Microsoft plays bully in OZ - even if it's with a charity that also acts like a bully.

Kieren may be right, that Microsoft is fully within their rights to demand money from an organisation which demonstrably has none, but that's missing at least one point - if not two.

What obviously irks anyone following the PCs for Kids story, what obviously gets them scratching their noggins, is how things could get so screwed up in the first place.

If Computer A is paid for and free and clear, and if it is donated to charity, and if it is perfectly all right for this charity to pass this computer on at no additional cost, and if Computer A has Software A on it, and this software is also paid for and free and clear - then why the fuss?

It is here we come to the heart of the problem - the End User License Agreement (EULA), the way the EULA is presented to the customer, the way the Product falls or does not fall under ordinary consumer legislation, and so forth and so on and so forth and so on.

No one will argue that a computer that is paid for is truly paid for. Computers are machines, however. They may be classified as appliances and they may not. Automobiles may be sold by their owners, and intellectual property such as books may be sold by their owners, but what about software? What's the deal there?

The sad fact is that most people do not know - and therein lies the rub. For because the consuming population has no clue what the real deal is, it is prepared to accept anything.

EULAs are foisted on people after they buy products, not before. Microsoft are the unchallenged masters at changing their EULAs ever so slightly so that consumers face monumental new costs overnight. It's all in the hands of the seller - the buyer has no part in it, no say whatsoever.

In fact, ownership is even open to question: According to Microsoft you do not 'own' your copy of Windows if you buy it - you are leasing it.

And the significance of this claim does not end with PCs for Kids either: If your software is not your property, then its sale does not fall under ordinary consumer legislation. Meaning exactly what?

Towards the end of most EULAs you will find a 'disclaimer'. Something about 'merchantability'. This was no doubt thought up once upon a time because software vendors were paranoid customers would sue them for everything under the sun (as they may likely have). But Microsoft is using this clause a different way.

In essence, and given the official legislative sanction Microsoft is hoping for, your disclaimer clause will mean you cannot redress your software vendor even if their software never works.

You buy it, you pay through the nose for it, you get hit with a EULA only after you've parted with your money, and now - does it work? It doesn't have to. Legally it doesn't have to do a goddarned thing. Not a thing. Your vendor is protected by law.

Some experts argue that the vendor is already protected, but one thing is for sure: They will be in the near future, if Microsoft has anything to say about it.

And what does Microsoft have to say about it? UCITA is what.

UCITA is the Uniform Computer Information Transactions Act - the software consumer's ultimate nightmare. It has been opposed by every recognised and decent organisation in the world, and promoted by only two: SIIA and Microsoft. The ACM, the IEEE, lawyers and software vendors everywhere have tried to get a word in and protest the way this bill was put together. Their cries have all fallen on deaf ears.

All the while Microsoft has been able to wine and dine the UCITA committee and get them to listen to their every word, accommodate their every whim.

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

  • 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. PCs for Kids won't have a debate on its hands - it will have a walloping lawyer's fee.
  • Merchantability goes 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 legally redress them for this failure in their product. It crashes, never works? So what?
  • Licenses apply to only one machine, one person, and one install - sounds a little like XP and .NET, doesn't it? And you may not even give an old box with an old Windows away. (Here's the PCs for Kids spook again.)
  • 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 e-mail.
  • Your EULA might not even be included in your software package; it might be e-mailed to you; and whether you receive (and are actually able to read) this EULA will be a moot point: Its verifiable arrival at your e-mail domain (and not in your mailbox) is sufficient to establish your culpability.

(Want even more? Click here.)

Please visit the Affect site and give your support to them in their fight against UCITA. For while Kieren might be right, Microsoft - and most certainly UCITA - are very wrong.

See Also
Line in the Sand
The Software Conspiracy

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