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Comment To FTC On Software Warranties And UCITA 159

Posted by Cliff from the let-yourself-be-heard dept.
Bruce Perens writes: "The U.S. Federal Trade Commission is running a forum on software warranties and UCITA. This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors. It's of interest for proprietary software users because the warranties attached to software that you pay for are generally considered inadequate.FTC is soliciting written comments, the due date is Sept. 11. Full details on how to comment are here."
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Comment to FTC on Software Warranties and UCITA More

Comment to FTC on Software Warranties and UCITA

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  • Re:UCITA Text/Warranties (Score:1)

    by Anonymous Coward
    Hey dude, thanks for the link.
  • That's not a good example. It's more like if I eat a "boneless" chicken and nearly choke to death on a chicken bone, I can't win in court. Altough it's "boneless" it's a chicken and hence it's naturally with bones. You haveta watch out for them even though it's advertised as boneless. Likewise software attempts to be bugfree, but we all know that's not the case. You have to take reasonable care of your data to prevent against loss. (backup, ect) my 2 cents
  • Programs like cyber patrol have been shown to be consistantly effective...

    There's the big clue, guys, this is a troll. Move along.

    Seriously, though, I think what a parent really wants for kids is not an opt-out list, but an opt-in. That is, a list of trusted providers, possibly with the providers themselves asserting their kid-friendliness, and trusted organizations providing the list(s). So if you want safe stuff for your kids, you grab the list from the organization you trust (which may be a Netscape-style bookmark file, for example; or perhaps it's a portal URL that you add to your short list). You disable the direct entry of URLs. Not only is this "safe", but you may also find it easier to find the good stuff.

    The web is international. Take away the common carrier status for ISPs, and purient interest stuff just moves to another, *freer* country.
  • heh. actually, you are wrong. i don't work for an ISP at all. if you had gone to the domain where my email addy is at, you'd've figured out right away where i work.

    thanks for playing,
    -l

  • I can see how testing to see if a contract is illusory and invalidating it on those grounds complements the older test for consideration.

    Honestly, my gut feeling on this (I'll have to consider it for a while before my thoughts really crystallize some more) is that consideration encompasses illusion. Is it inaccurate to say that a clause which would be illusory is not if there is a valid alternative course of action? (e.g. I promise to pay you, if I don't we go to impartial arbiters...)

    But I don't feel that consideration, no matter how weak, should be eliminated. What's wrong with a little redundancy or at the very least, a backup? ;) Obviously many people (including you, I'm sure) don't really care what I think.

    But I'm still not happy with the idea. We have a lot of screwy notions going around wrt the law. Getting rid of consideration sounds like one of them to me. So how again am I being unfunny and/or misinterpreting the law?
  • Well - my opinions on that case aside, it's about the only *software* case I've been able to find that involved what we call shrinkwrap licenses and shrinkwrap licenses alone. Nearly everything else involves some other action that engaged a contract instead of consisting of a sale. And there was not a firm trend in either direction by all the deciding courts. It's about a 50-50 split, and the Supremes haven't heard any such software cases yet.

    There _is_ a good Supreme Court ruling on something similar. IIRC it's wrt books. (but isn't the case in the early 1900's regarding minimum resale price for books. That case did not involve contracts/licenses) Unfortunately I'll be damned if I can remember the specifics of the case I'm thinking of here. Can anyone with more time to research it help me out?
  • They're eliminating consideration because it'll be uniform? That's the stupidest thing I've ever heard. Bastards.
  • No - like I said ,it's not Bobbs-Merrill. There is an additional case IIRC in which sale was disguised as licensing, much as it was in ProCD. Clickwrap (as opposed to ProCD's shrinkwrap) at least requires affirmative action on the part of the owner to accept the terms of the license. I'm not arguing that clickwrap is unacceptable (though it needs to be a complete and viable contract, obviously) but that shrinkwrap is. I'll ask some people for the case I'm thinking of.
  • 17 USC is federal copyright law. It's suprisingly enforcable. The doctrines of fair use, first sale, etc. come from a long line of constitutional decisions but are also written into law these days. (they would apply even if the law said otherwise; thank god for judicial review)

    Which court decided that copying from one memory to another was infringing? Do you have any further information?
  • Well like I said around here someplace, once you legally obtain an authorized copy of the software you're free to use it however you want. You don't HAVE to agree to the GPL or the MS EULA. You can use it without agreeing. Managing to do so may be tricky when you have installers that won't do anything when you disagree, but they can be gotten around quite legally. Of course, IANAL, but this is pretty evident anyway IMHO.
  • But here's the key -


    FN5. Since MAI licensed its software, the Peak customers do not qualify as "owners" of the software and are not eligible for protection under s 117.


    The trick is that if the license that licensees agreed to included giving up 117 being non-infringing, the ultimate decision of the case is understandable. Still kind of stupid, but understandable. The Triad case is also in this vein.


    But when you go to the store and make a horrible mistake by buying a copy of Windows ;) no license has yet been agreed upon by both parties. It's possible that opening the box constitutes agreement to the license, but it's unlikely. Clicking on the agree button in the installer, on the other hand, is much more likely to be considered valid agreement.


    In the case of GPL software, if you legally obtain an authorized copy (easy to do) you are not bound by the license, but since first sale has effectively occured, you are protected by 117. This is how I'm seeing it, anyway.


    Really, software licenses aren't going to be able to supplant first sale in between purchase and installation (incld. agreement) unless there's a lawyer or someone at the store that makes you agree as a PREcondition of sale. Triad is actually a good precedent ironically enough.

  • Pray tell, how am I doing any of the above? Admittedly, it's news to me that consideration is being eliminated on a wide scale, but if the post I replied to was accurate, I fail to see the benefit.
  • Using a program requires loading it into RAM, which is considered copying. Thus, you can't use the program except if you agree to the license. If you have no license to use copyrighted material, you can't legally use it.

    Your interpretation can be summed up as: "You don't have to do what I say, but then you can't use this software at all." If that's the case, then why did they bother stating it at all? The same is true even for Microsoft's EULAs. I don't have to agree with them, but in that case I'm not supposed to use the software.
  • Sure. Require a warranty. But limit liability to some function of the price paid for the software/license.

    Interesting idea. Unfortunately most copies of Windows (and many of Office, etc.) come bundled with computers at no additional cost to the purchaser. Microsoft could (and probably would) argue that the consumer had paid $0 for the product and hence had no warranty. The PC manufacturer might be entitiled to $30 worth of warrenty (1 support call?), but the actualy buyer might be entitled to nothing.

    If the software comes bundled with the computer, one might be able to successfully argue that the software is just part of the system the same way the CPU is part of the system, so when the software malfunctions, the system has malfunctioned and the manufacturer of the computer is then liable for (in the scheme being discussed here) up to three times the price of the computer in damages.

    The only way the computer manufacturer should be able to get out of this is by itemizing the OS and other bundled software on the invoice and showing that they are free, and also offering the same computer system without an OS for the same price as with Windows. Not sure if they'd do that or not...


    --
  • Argh! Whatever you think you know about the McDonald's "coffee" suit, it's wrong. It's been discussed before repeatedly on both Slashdot and elsewhere, so I'm not going to repeat it yet again here.

    Yeah, it's been discussed here before, but there's one question that I've never seen asked: had the woman ever bought coffee at McDonald's in the recent past prior to that particular purchase? I suspect that she had, in which case she had firsthand prior experience with the temperature of McDonald's coffee and therefore had no grounds to sue, much less win, unless the temperature of the coffee that time was unusually high (which I don't believe was the case. Indeed, part of the reason she won is that it wasn't unusually high). It's not like McDonald's has a monopoly on coffee or anything...


    --
  • I often see people here complain about proprietary software (usually Microsoft's) saying that software companies should be held accountable for their cra^Wsoftware just like makers of any other products are. This seems reasonable, so, for example, Microsoft could be liable for the recent spate of virii.

    Is this not what the UCITA provides? It sounds like something we should advocate. But it's bad for GPL, and we can't say that it only should apply to proprietary software, because then right from the start, it solidifies the anti-OSS who-can-we-sue argument.

  • Is there anything anywhere that lists what's required of these warranties? I mean couldn't you just attach a really dumb, simple stupid warranty to your program like - "I give you the warranty this program uses CPU cycles if you run and/or compile it?"
  • It's not that Free software should be exempt from warranties. It's that free software should be. I.e. if I give some guy a piece of code and specifically tell him that I don't know if it is perfect, he has no legal or moral right to demand any sort of warranty from me.

    If he wants a warranty, he can buy the program from me. If he has given me nothing, he has no right to expect anything from me. It basically just boils down to that.

    Basically, please explain how people should have to warrant their gifts.

  • Eliminating consideration would seem to put the GPL on better terms, though. Some legal experts think the GPL has no force as a license/contract because there is no consideration. If consideration is no longer required for a valid contract, then that's one more way that the GPL is a solid license. Or am I completely misinterpreting this?

  • I was doing a search for a citation for 'warranty' vs. 'guarantee' with special regard to software, and this link [curves.com] came up number #1. Google must've glitched a new meaning into 'software'.

    I especially liked their fervent assurance that internal insertion of Curves® WILL result in severe bodily injury.
  • If I give you free beer, and you get drunk and have a serious car wreck, can I be sued or should I be off the hook?
  • A beowulf cluster of slashdot addicts? Now that's scary...
    --
  • All software should be covered by the same warranty. "If you are in any way not satisfied by the software, you are entitled to a full refund."

    I think that could work...

    We don't know how bad things are in north korea, but here are some pictures of hungry children. -- CNN
  • Because it specifically states that you do not have to agree to it if you don't distribute the software.

    We don't know how bad things are in north korea, but here are some pictures of hungry children. -- CNN
  • I'm not sure how enforceable 17 USC 117 (a)(1) is, but the 'coping into RAM' thing was held up in Court.
  • ok, ok, maybe the coffee-thing was a bad example, the point i wanted to make is: the US allows you to sue someone for unreasonable amounts of money for things that should be common sense. this may be dangerous for free software.
    in most european countries, any attempt to sue a free software developer will fail, because you didn't pay him any money.

    greetings, eMBee.
    --

  • i may be way off base here, but i seem to recall that the UCITA had some wording in it that disclaimed software creaters from any liability from damages caused to a business by the use of that software...? (or something along those lines?) ... i really don't recall the specifics of this, and it could very well have been part of one of the other whacked-ass laws that have been passed/proposed in the past couple of years ...

    -my pancreas! my pancreas! dude ... that *hurt*!
  • Had problems with scandisk as well, read the drives and kept discovering bad blocks, ran a low level format on it and it was ok again (BIOS didn't find any errors), not that I'm an expert on hard drives so that might be perfectly normal...

    but anyway.... the point is, scandisk did this when it ran automatically after a system crash, no user involvement at all.

    Then again no matter what I don't think there is ever going to any comeback on companies for software bugs, they'd all be bankrupt in a week.

    How would this work with free software anyway? You could put it up on a server in another country, even appoint someone from there as 'Project Coordinater' or some such. Short of somehow banning downloads from states with UCITA (you can get a cream for that) surely it is the users responsibility if they choose to download and use it?

  • Hey Bruce, if the GPL is a license-hence-contract under UCITA, doesn't that contract apply only to copying and changing the program?

    ISTM that the GPL is not a license to use the software, and therefore UCITA doesn't apply to use of GPLd software.

    I'm interested in your thoughts on this.

  • Why not put it in your code as well? (assuming you choose to release it.) Something along the liens of 'By reading this line you voluntarily give up all rights to support and warranty for this product'. However, this might be detrimental, if one takes the intent of making the source code public as encouraging others to develop it.

    [ maur_at_technologist.com ] "For a sufficiently powerful message,
    [ http://maur.litestep.com ] the medium is irrelevant."
  • Cpt. Thanks for your reply. I believe you are referring to the "first sale doctrine" establish in BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908) [findlaw.com] This did involve the minimum resale price set by a publisher and subsequently violated by Macy's. IIRC, ProCd intentionally did not delve into the copyright violations, and the applicability of the first sale doctrine. Instead, it found for the publisher on the contract theory. If there is a split in jurisdictions, please let me know. This would be vitally important to some of my research work. I do know that ProCd was denied certiori by the Supreme Court. This rather scares me b/c AFAIK it leaves it as the most persuasive authority in other jurisdictions. Thanks
  • If the law exempts alpha and beta software then there should be no problem. There can be no warranties on beta software since it is in "development" and If you feel the software project has come to the point of stability then you can release it as a final product and sell the warranty. That's what would make sence to me since it most closely follows the open source money model -- software that's free (beer and speech) with support that's paid for (now with a warranty!)
  • A woman drove her bicycle past several signs in a National Park that said ``No Bicycles!'' ``Hikers Only'' etc. When she drove off the trail and hurt herself she sued because the signs said that it was illegal to drive the bike, not dangerous.
  • Giving warranties is a good thing, except when I have to do it.
    I know you were mostly just noting irony, but...

    Free software works on the premise that the author loses nothing by allowing more people to access their software, i.e., possession of software is non-exclusive. If there's a warranty then it does cost the author to distribute the software, because each user is a potential liability.
    --

  • Using a program requires loading it into RAM, which is considered copying.
    Copyright law is concerned with copying a work for distribution. It doesn't bar you from copying a work for your own use in certain ways, such as the "time shifting" and "space shifting" involved in taping a broadcast television program, or copying a CD to tape so you can play it in your car's tape deck, or copying a video game ROM to your computer so you can play it on an emulator. See the Sony VCR suit and the Sony v. Connectix emulation suit for this principle. (Giving out copies of the tape or ROM to your friends is, of course, a violation.)

    I suspect that the loading of software into RAM is a "space shifting", just as emulation is. You don't need to be licensed to do this; you have a right to do it based on the fact that you legally obtained a copy of the software. You do, after all, have the basic right to use your own property.

  • This text from the GPL reads like a tear-open license, and thus a contract:

    Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

    There is legitimate reason for concern.

    Thanks

    Bruce

  • The problem is that UCITA requires warranties in some cases and prohibits contracts that waive the warranty. Then we have the question of whether or not our licenses are contracts, but we are on real thin ice there.

    I am talking with an attorney who assures me there really is a problem. I can put you in touch with the attorney if you want some assurance that I know what I'm talking about.

    Thanks

    Bruce

  • I'm asking the attorney who brought this to my attention to write a paper. I'll attempt to get it published on Slashdot and elsewhere. That way, we can have an answer a bit more authorative than mine.

    Thanks

    Bruce

  • I know an attorney who read the bill and tells me differently. We have a real problem here. I can put you in touch with that attorney if you wish.

    Thanks

    Bruce

  • Gee. Do I really have to go into hiding over this? I'd rather get a few simple changes into the law.

    Thanks

    Bruce

  • I'd be happy to exchange warranty protection for money. That's what most proprietary software publishers do as part of charging for their software. When I write free software, I don't provide a warranty, that is only fair. Anyone who wants a warranty can contract with LinuxCare or their local consultant to provide one, and pay for the privilege.

    Thanks

    Bruce

  • The problem is that the law currently doesn't recognize free software and places the same requirements on all software. IMO people who take money for software should be obligated to provide a money-back warranty. People who give software away should not be required to provide a warranty. The problem comes when somebody sells free software, as in a distribution. They can be made to pay customers back, and then can turn around and sue the developer to recover their damages. I want to protect that developer when it's free software.

    Thanks

    Bruce

  • I'm having the attorney write a paper which I'll attempt to get posted on slashdot and elsewhere.

    Thanks

    Bruce

    P.S. I hope this posting comes out OK. My posting screen has "This box will be back once mu.current.nu is back to normal" all over it.

  • A possible scenario is that a distribution has to make refunds (or pay damages - there's a default warranty that may apply). Remember, the distribution is selling a copy of the software. The distribution can then sue the developer to recover its damages. Sure, Red Hat wouldn't do this but I would not put it past some of the others. We want that developer protected.

    Thanks

    Bruce

  • Although it's commendable that Bruce Perens and others are interested in the interaction between free/open-source software and the commercial and/or legal systems, we shouldn't infer from this that the relationship is stronger than it really is.

    The success of free/open-source software is not dependent on its large-scale (or even small-scale) adoption by the commercial sector. The community is a totally independent organism with its own positive-feedback growth mechanisms, and at its most commercially-affected, all it does is take specifications from the commercial sector as additional input, occasionally. It certainly doesn't need to do so to survive and grow, and it certainly doesn't need the sanction of the courts for us to continue to use free software and contribute to its growth.

    ESR was right to say that the commercial world would do well to adopt open-source practice, but that doesn't mean that there is a reciprocal dependency. In many respects, commercial interest just creates inertia which limits the natural growth potential of free software, in part for no other reason than that it tends to create big products which are then not easily built upon by the rest of the community. It's the pure RMSian meaning of "success" that gives the community its massive potential, a continuous cycle of enhance-or-reuse and redistribute without limit, and the commercial and legal worlds are simply not a part of it unless they drop the strings that they would otherwise attach to everything they release or try to control.

    The short answer to the article then is, it doesn't really matter as far as the success of free/open-source software is concerned, even in the extremely unlikely event (as others have pointed out) that all court rulings go utterly against the GPL.
  • To remove the last vestiges of doubt, he should include in his source, any executable he releases and any licence he releases with either of these, a statement to the effect that he can't be responsible for the effects of using the program on a system he knows nothing about. He should go on to say that anyone who wants to be sure that the program will be safe to use should take and rely on advice from an appropriate professional, and if they don't, it's their own look-out. (Take advice from a lawyer local to you about the exact wording to use).

    Why not just copy M$' EULA? It's pretty much what they say..

    I still say, given a solid enough wording, that OSS could really win from UCITA, particularly since acquiring new software would become activity requiring strict legal and fiduciary scrutiny instead of slapping junk in you just bought from J&R computer world down the block. UCITA will require software planning, something many commercial organizations don't engage in, and when you've been given (thanks to UCITA and legitimate legal/financial hesitation due to the strength of the licensing terms) some breathing room to DESIGN a solution, OSS gets a bigger chance. Then when you see OSS licenses are explicitly free and unencumbering (except for redistribution of source code), it becomes the path of least resistance..

    Hmm...

    Your Working Boy,
  • Rather, they give the source code itself away as a replacement for a warranty. The source code gives the consumer the ability to examine for herself whether a given program is reliable and well-engineered.

    Methinks you hit the nail on the head right there. The rest is well-thought-out, too. And the closing remark thanking them for the opportunity to comment is a good example of politeness that goes a long way to making sure your comments are considered. In short, your apology for it being "far from perfect" is unnecessary.
    Christopher A. Bohn

  • The public performance issue I raised earlier I still have questions about (though Karsten outlined a possible solution) but your explanation of the warranty issue sounds valid to me.

    The key is not in the wording of the GPL, but rather in carefully following the instructions for how to apply the GPL to your program.

    Cheers,
    Ben
  • A lot of proprietary software cannot be legally run at all.

    Hey... :-)

    IANAL but I would strongly doubt that your interpretation would stand up. After all you are supposed to use common sense. Actually running a program would probably be covered by something like fair use.

    Cheers,
    Ben
  • Sure. Require a warranty. But limit liability to some function of the price paid for the software/license.

    Interesting idea. Unfortunately most copies of Windows (and many of Office, etc.) come bundled with computers at no additional cost to the purchaser. Microsoft could (and probably would) argue that the consumer had paid $0 for the product and hence had no warranty. The PC manufacturer might be entitiled to $30 worth of warrenty (1 support call?), but the actualy buyer might be entitled to nothing.

    Suppose that UCITA required that software writers be on the hook for up to three times the cost of their program.

    There are enough other things wrong with UCITA to disqualify it from being a good idea, even if a reasonable compromise on warranties could be reached, and IMHO it is impossible to do so, as any disclaimer negates it anyway. Such a law is designed to prey upon the unwary: it adds no requirement to corporations with savvy legal departments, but victimizes joe schmoe who gives something away for free without knowing the law, and hence without properly disclaiming a warranty.
  • At any rate, you *can* buy Windows, Office, etc. off the shelf, so getting a retail price for the purposes of such a plan is hardly impossible.

    True. My point wasn't that it would be impossible, but rather that for the vast majority of consumers nothing substantial would have changed.

    Furthermore, as others have noted, there is a gaping loophole in the warranty provision that would allow Microsoft (and, to be fair, the Free Software Foundation) to disclaim all warranties, which is precisely what they would do.

    The result? Another law on the books, another potential legal landmine for the unwary and niave, and absolutely no change in the status quo.

    As I said, such laws offer nothing, yet prey upon the unwary. In this case, both the unwary consumer who thinks they have a warranty, but more to the point, the unwary, generous soul who gives away a piece of software (perhaps into the public domain with no license and no warranty disclaimer) and suddenly finds themself up to their neck in liability.

    In short, given that everyone from Microsoft down to Joe Schmoe has the option to disclaim all warranty under the proposed legislation (and I don't think this is necessarilly a bad thing), what is the point of passing the provision at all?

  • I guess this would mean that there would be requirements on companies like Redhat as well as Microsoft. This would mean that you should not get buggy software from either. Nor should you get any buggy cad software company or graphic software form companies X and Y. Keywords here are should and would and this does not exclude any other OS or distro maker, these are just two that I use so don't take this as a ding at any company.

    I wonder how much this would slow down the software industry. Rather than get a product out to market ASAP, they would need to now make sure that all the bugs were out of it. I know at a company that I worked for we had lots of known bugs that were not fixed and the underlying API that we used had bugs in it that we could not get fixed.

    How would one enforce waranties(sp) on free software? Or would this be a case where all software would have to come with a file describing the warrenty(sp) on the software. Even with a warrenty(sp) what would the software have to be required of doing? Never crashing?

    send flames > /dev/null

  • How exactly would these rulings apply to the free software itself?

    I can see a company like RedHat marketing the service/support of their free distribution; it's the service and/or support contract you make with RedHat that would be waranteed.

    Free software is kind of like free water. If you get it out of the tap or a bottle, it's the packaged product that's being marketed and sold, and waranteed to be free of contamination (just look at the e-coli problem we've been having here in Ontario). If you choose to dig a hole in the ground, soak up puddles with a sponge, or collect rain-water in smoggy downtown-Toronto, you're free to do so.

    We are all responsible for the quality of the water, probably tap the same water table in the ground, but my well on my property is my responsibility to monitor, and the utility company is answerable to government regulatory bodies.

    Free software is the same (IMHO). It's all the same general body of code, however if I want to maintain/compile my own system I'm free to do so. If I don't want the hassle, or live in a community/corporation environment then it's something I can contract out to a company like RedHat. RedHat is the one accountable to warrantees. If the code isn't up to snuff, it's up to them to either fix the code (equivalent to cleaning up the environment), or wrap it in their own proprietary solution (the post-processing, water-treatment plant).
  • The accompanying software is guaranteed to operate in exact accordance with the source code provided, under condition that it is compiled using an error-free compiler and executed on error-free hardware.

    What about undefined constructs in the language?

    ;-)
  • Erm, freeware != open source.

    I can find you plenty of freeware software where no source is available. Freeware usually means that the author asserts their copyright but does not charge users in any way, shape or form.
  • i do not believe that required warranties will harm free software. in austria and germany such warranty laws are in effect, and the 'no warranty' clause of the GPL is void.
    that really doesn't seem to hurt free software there.
    (but then, you also can not sue someone for a million because they didn't tell you that the coffee was hot, so maybe free software in the US will be harmed)

    greetings, eMBee.
    --

  • Ah, but provision 4 says:
    You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License.
    Using a program requires loading it into RAM, which is considered copying. Thus, you can't use the program except if you agree to the license. If you have no license to use copyrighted material, you can't legally use it.
  • In fact, I am an attorney. One who has been practicing primarily computer law for the past ten years. I just finished a term as chairman of the Florida Bar Computer law committee. I am intimately familiar with the bill, and have been frequently amazed at some of the things people who are political opponents of its provisions will say. The bill has real, legitimate problems -- this is not one of them.

    Now, this is not a reason to take me at my word on this point, or to accept the unsupported conclusions I laid out above. I am simply pointing out that neither is the "I have a lawyer-friend downtown" remark a reason for the same.

    If you think that UCITA imposes a warranty that cannot be disclaimed, one that would not be likewise imposed by the common law or the UCC, by all means, please identify it, and I will address your point.

    Thus far, all we have in this colloquy (both sides) is non-falsifiable blather. If you or your friend wish to support this proposition, please do so.
  • With all the gainsaying here, I thought it would be time to get back to principles. Exactly as is laid out under the present law (Uniform Commercial Code), and in fact under the common law as well, a number of implied warranties arise from every commercial transaction. UCITA is no different. It does, however, have some license-specific warranties, which I presume are the ones over which Bruce is getting bent out of shape.

    Let me say at the outset that I am likewise unfond of some of these warranties. But that doesn't alter the fact that the posted statement:


    UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free
    software authors


    is just bull. As with the UCC and the common law, all implied warranties can be disclaimed in a record, indeed with the very language of most current licenses. The words "AS-IS" get rid of most of the warranties, and the rest (suitability for a particular purpose and title and infringement and the like) can be fixed with certain magic language prescribed by the Act. Just like the UCC. Nothing new here. The siren rang by the poster isn't the truth.

    Don't take my word for it. Read for yourself. Section 406 of the UCITA expressly provides:


    SECTION 406. DISCLAIMER OR MODIFICATION OF WARRANTY.

    (a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to disclaim or modify an express warranty must be construed wherever reasonable as consistent with each other.
    Subject to Section 301 with regard to parol or extrinsic evidence, the disclaimer or modification is inoperative to the extent that such construction is unreasonable.

    (b) Except as otherwise provided in subsections (c), (d), and (e), to disclaim or modify an implied warranty or any part of it, but not the warranty in Section 401, the following rules apply:

    (1) Except as otherwise provided in this subsection:

    (A) To disclaim or modify the implied warranty arising under Section 403, language must mention "merchantability" or "quality" or use words of similar import and, if in a record, must be conspicuous.

    (B) To disclaim or modify the implied warranty arising under Section 404, language in a record must mention "accuracy" or use words of similar import.

    (2) Language to disclaim or modify the implied warranty arising under Section 405 must be in a record and be conspicuous. It is sufficient to state "There is no warranty that this information, our efforts, or the system
    will fulfill any of your particular purposes or needs", or words of similar import.

    (3) Language in a record is sufficient to disclaim all implied warranties if it individually disclaims each implied warranty or, except for the warranty in Section 401, if it is conspicuous and states "Except for express
    warranties stated in this contract, if any, this `information? `computer program? is provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user", or words of
    similar import.

    (4) A disclaimer or modification sufficient under [Article 2 or 2A of the Uniform Commercial Code] to disclaim or modify an implied warranty of merchantability is sufficient to disclaim or modify the warranties under
    Sections 403 and 404. A disclaimer or modification sufficient under [Article 2 or 2A of the Uniform Commercial Code] to disclaim or modify an implied warranty of fitness for a particular purpose is sufficient to disclaim
    or modify the warranties under Section 405.

    (c) Unless the circumstances indicate otherwise, all implied warranties, but not the warranty under Section 401, are disclaimed by expressions like "as is" or "with all faults" or other language that in common
    understanding calls the licensee?s attention to the disclaimer of warranties and makes plain that there are no implied warranties.

    (d) If a licensee before entering into a contract has examined the information or the sample or model as fully as it desired or has refused to examine the information, there is no implied warranty with regard to defects
    that an examination ought in the circumstances to have revealed to the licensee.

    (e) An implied warranty may also be disclaimed or modified by course of performance, course of dealing, or usage of trade.

    (f) If a contract requires ongoing performance or a series of performances by the licensor, language of disclaimer or modification which complies with this section is effective with respect to all performances under the
    contract.

    (g) Remedies for breach of warranty may be limited in accordance with this [Act] with respect to liquidation or limitation of damages and contractual modification of remedy.

  • This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors.

    Nonsense. This is more pabulum and disinformation designed to stir up dissent among the ill-informed. I commend to all my colleagues the text of the bill -- read the darned thing (including the commentary) and then decide for yourself.

    Express warranties need not be given, and implied warranties can (almost always*) be disclaimed. You can easily give a BSD-style license under UCITA. If anything, the situation under UCITA would be slightly better: you will have somewhat greater assurance that warranty disclaimers are enforceable.

    There are a few pieces of the common law, UCC (which would apply in the absence of UCITA) and UCITA that cannot be disclaimed as a matter of law. In this regard, UCITA is not substantively different from the status quo.
  • Comment removed based on user account deletion
  • There is no friend anywhere. Fnord.
    --
    No more e-mail address game - see my user info. Time for revenge.
  • The problem is that UCITA requires warranties in some cases and prohibits contracts that waive the warranty. Then we have the question of whether or not our licenses are contracts, but we are on real thin ice there.
    I am talking with an attorney who assures me there really is a problem. I can put you in touch with the attorney if you want some assurance that I know what I'm talking about.

    Thanks



    Let me see if I properly understand the situation here. UCITA would require warranties on free software, but not on purchased software? If that is not the case, and it would require warranties on both then what's the problem? MSFT would immediately fail because it can't garauntee the operation of its OS under anything more strenuous than 100% clean, no load testing.
    If it is lopsided and would only require it for free software then I'd have to say that's pretty clearly an anti-competitive piece of legislation and could be struck down rather easily.
    I personally wouldn't mind someone forcing all of the big commercial software houses to garauntee their product. They might actually turn out something bug free....
    If my view of this is completely wrong please let me know. But as I see it this isn't a new horrible thing, it's just the same horrible UCITA that needs to be gotten rid of, and we already knew that.

    Kintanon
  • The problem is that the law currently doesn't recognize free software and places the same requirements on all software. IMO people who take money for software should be obligated to provide a money-back warranty. People who give software away should not be required to provide a warranty. The problem comes when somebody sells free software, as in a distribution. They can be made to pay customers back, and then can turn around and sue the developer to recover their damages. I want to protect that developer when it's free software.
    Thanks



    Hrmmm. I'd have to agree with that. A company that takes a piece of free software, packages it, and resells it should not be able to sue the developer of that software if they are required to provide a warranty. It just means that they will have to (Horror! Tragedy!) inspect the code themselves to make sure it doesn't have any horrible bugs in it. The developer should always be protected, just as a regular corporation can't hire a couple of programmers, have them write some code, then sue them if the code breaks. They can fire them, but they can't sue them for damages unless they can prove it was malicious, then it becomes a criminal affair....
    So yeah, I have to agree that the developer should be protected from retribution by companies which are profitting from code that the developer gave away for free.

    Kintanon
  • And pray tell me, who's the bearer of the primary liability in the case of, say, oh, Linux kernel?

    If you buy commercial software it's a clear cut. The bearer is whoever gets your money.

    Now, if you buy Red Hat Linux x.y, the entity that gets your money is Red Hat, Inc. So one may have luck suing them. Indeed, if you decide to sue someone because your Microsoft software is faulty, that "someone" is likely to be Microsoft, not individual developers(s) that produced faulty code.

    If you download that same piece of software from freefsckingdownloadsofthefsckingday.org, it's not clear at all why Torvalds/Cox/whoever would suddenly become bearers of primary liability. It looks like the operator of the aforementioned .org will bear liability in this case, as it's not really different from Red Hat.

    And said operator is, by the way, a $50/year nonprofit.

    This "solution" does not work for people that get real money in exchange for their wares (either directly or through a subsidiary or maybe through the Satan himself), because the buck must stop somewhere. If there's no buck, there's no place to stop either.

    I propose a solution for independent developers who want to release free software without risking lawsuits, not for the people who're in the business of free software. I didn't state it in the very beginning, so I'm a dumbfsck, Ok?
    --

  • This is pretty interesting. Consider this situation.
    • Suppose I write a piece of free software and upload it to some .org FTP server. Suppose, for the sake of argument, I forget to disclaim liability in my license.
    • Somebody else fixes 2 killer bugs and 14 minor ones, introducing 6 more in the process.
    • Yet somebody else adds two new features (and some new bugs to go with them).
    • Somebody from Microsoft needs this software to do his job. He downloads it, finds a minor bug, fixes it, introduces another one, doesn't put his name anywhere, and uploads the new version (and logs at the .org remember it was uploaded from a Microsoft computer).
    • Yet somebody else rewrites everything from C to C++, leaving all existing bugs intact and of course introducing some more.
    • Finally, someone else submits a one-line fix that allows the whole thing to be compiled with an ancient version of g++ on some piece of obscure hardware.
    Again, for the sake of argument, suppose that up-to-date binaries for x86 Linux and Windows 9x are generated automatically by said .org for each source release.

    Now the only logical conclusion that I'm able to make is that everyone involved is equally liable. Which, frankly, doesn't make any sense whatsoever to me. Probably laws just don't obey the rules of logic.
    --

  • It seems to me that he's saying the reverse: commercial software should be warrantied, but free software should be exempt, for who knows what reason (but particularly, I suspect, because he writes free software). But UCITA will require warranties, unless disclaimed through a license? At least that's what I gather from the article text and the discussion on technocrat.net, although I couldn't find anything on this matter from scanning through the UCITA. Perhaps someone can post a reference.
  • Firstly free software as I understand it refers to freedom, and not price. Free software might very well be sold by their authors. What then? No free software sold commercially that I know of fails to disclaim warranties. Supppose that you package up software that you wrote with a manual, and sell it with support. Are you then willing to warrant your software? (note that support is not the same as a warranty)

    Even supposing that we are refering to software given for free. Well a lot of commercial software is sold for very little profit, zero economic profit in fact. I'm thinking of shareware here, where the price of the software is just enough for the developer to make a livelihood. Requiring a warranty increases the potential cost of developing the software dramatically, and will have an especially chilling effect on small software developers. I don't think this is desirable.

  • I'd be happy to exchange warranty protection for money. That's what most proprietary software publishers do as part of charging for their software.

    What proprietary software are you refering to that comes with a warranty?

    Anyone who wants a warranty can contract with LinuxCare or their local consultant to provide one, and pay for the privilege.

    I didn't know that LinuxCare warrantied free software. I thought they provided support, which is distinct from providing a warranty. Will they replace, refund or fix my free software in a timely manner if it fails to perform as advertised?

    . When I write free software, I don't provide a warranty, that is only fair.

    Rhetoric. Why is that any fairer than a commercial software developer disclaiming warranty? Simply because it's free? What if I sell free software I wrote?

    Free software developers dislike providing a warranty for precisely the same reasons commercial software developers dislike providing warranties: the potential cost, given the complexity of software. What if I'm a small shareware developer, and the need provide a warranty has the potential to destroy my livelihood?

  • I've been thinking... is it really a bad thing to require that a license not disclaim warranties totally? I know it's harsh on free software authors, as they often do not have the means to pay damages or get legal support in the case that trouble arises.

    However, OTOH you have these lame software producers who write crappy code and disclaim everything, but they happen to be the sole supporters of something you need. What if they bugged their code and exploited you, but their license terms are sufficiently broad to give them a way to weasel out when you sue them? I can see why people are pushing for laws like this to be passed...

    So here's the idea: why not the FSF start a fund of some sort, or something similar, to support free software authors? Or if it's not feasible for the FSF to do this, maybe some other organization. This way, you can have both licenses that people can depend on, that don't disclaim just about everything, and you also don't bog down free software developers who can't afford to support a license with a warranty.


    ---
  • Oh oh! The proggie core-dumped on me while loading. Examination of that core file showed that it was corrupt. WTF? Didn't you document bug this too?

  • It looks like the FTC is gearing up to propose federal preemption of UCITA. The FTC staff opposed UCITA, and generally favors an approach based on the Magnusson-Moss Warranty Act, which is pro-consumer. Federal law preempts state law, so if software comes under the main federal law on warrantees, state laws based on UCITA are overridden. Right now, software isn't considered "goods in commerce", which is a loophole in Federal law. The FTC is considering plugging that loophole.

    This is a good thing. Warranties on software need to be more like warranties on, say, cars. Offering a full warranty, as defined by Magnusson-Moss, (free repair or replacement of defective parts; refund or replacement for goods if cannot be repaired in a reasonable time) is great for consumers, and not too hard on software manufacturers. Manufacturers can still disclaim consequential damages ("the software ate my file system"), but have to deal with complaints promptly and offer refunds. And the warranty period can be limited, as in "Full 3-year warranty". So you have to send out replacement disks and refunds now and then. Big deal. You also have to respond to complaints within specified time limits. Again, big deal.

    I have a background piece [downside.com] on this which answers in detail most of the usual objections to software warranties. It was written regarding the Microsoft antitrust case, but the background info is still valid. Knowledgeable comments would be appreciated. Thanks.

  • It's an easy one to avoid liability. Wherever you put your software up for download, make a little webpage form that you have to click on. Then you get the customer to eternally waive all right to claim damages, which of course will be enforceable in a court.

    At least, thats what Microsoft did.

    Should work for other people too, right?

  • Yeah, yeah, yeah. I blew it. Here [upenn.edu]'s the real link.

    (I'm just waiting until someone releases a plug-in compatible replacement for my head.)

  • Wading through te legalese in question, and getting my weekly quotient of legalese in the process, I can see that Free Software has little to worry about. From my reading of it, all the implied warranty requires is that if the program doesn't do everything it's warranted to do, you're entitled to your money back. So a warranty that says that all a program will do is take up disk space will not be in breach of contract if it segfaults on load. So, for Free software, as it never came with a warranty to begin with, life goes on, liscense changes will be at most very minor.

    Also, is there any site out there that specializes in de-lawyerizing legislation texts? I know it's important for the court system to have airtight laws, but legalize is considered, IMHO, to be harmful to ones health.

  • The Magnuson-Moss Act explicitly allows manufacturers not to include a warranty. IANAL but I think the act stands on top of UCITA. So should be able to say, sorry no warranty. For someone selling software, the sorry no warranty could be a disaster if you could buy software with a written warranty from someone else. Sort of what happens with car warranties, you look at the car, the sticker and the warranty (well if you don't have cash to burn) and many times the warranty tells you which is a better product. Will you buy a car with a six month limited warranty?
  • Gents,

    A reminder - please, please, please post this article regularly between now at the 11th of September.

    Also, are the comments sent in now 'official' with the digital signatures act? Would sending in now be a legal petition?

    JHK
    CASCAP, Inc. [cascap.org]

  • Real warranties are possible (Score:3)

    by Anonymous Coward on Tuesday June 27, 2000 @04:44PM (#972467)
    For several years I ran a firm that produced and sold industrial software with the following, money-back warranty -- and we were never asked for a refund. It is possible to write good software.

    "Wester' Shore Technologies Ltd. warrants, for a period of 12 months from the date of delivery, that all computer programmes supplied by it as part of the 'Tool Kit' work in accordance with the intended functions as described in detail in the User's Manual. Should any purchaser demonstrate that the programmes do not perform as specified, Wester' Shore Technologies Ltd. will make the necessary programming changes within a reasonable time and at its own expense so that conformity to the User's Manual is achieved. This is offered to ensure customer satisfaction. If, for any reason this is not feasible, the customer may, at his option, return the software package in its entirety, and all copies thereof, to Wester' Shore Technologies Ltd. in exchange for a full refund of all monies paid towards the software license."

    Morris Schneiderman

  • Re:I have been thinking about the GPL lately (Score:3)

    by Bill Currie ( 487 ) on Tuesday June 27, 2000 @03:02PM (#972468) Homepage
    Appearently, that's not a problem (IANAL) as the warantee disclaimer and the application of the GPL are separate (from the How to Apply These Terms to Your New Programs [gnu.org] section of the GPL):
    This program is distributed in the hope that it will be useful,

    but WITHOUT ANY WARRANTY; without even the implied warranty of
    MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the
    GNU General Public License for more details
  • Bzzt. Wrong, but thank you for playing. We have some lovely parting gifts for you, including a link to 17 USC 117 (a)(1) [cornell.edu] which specifically states that it is not an infringement for the owner of a computer program to copy it in the course of using it.

    This is a common misconception. But you don't have to agree to anyone's license to use software - not even MS's. Actually managing to use it may be tricky however.

  • IANAL but... (Score:3)

    by tilly ( 7530 ) on Tuesday June 27, 2000 @03:36PM (#972470)
    Someone else gave a link [upenn.edu] to the text of UCITA.

    Looking at that, section 406 (c) makes it utterly clear that a claim of "as is" or something similar to that (eg what the GPL does) is sufficient to disclaim all warranties except that of section 401. Section 401 only applies to information, not programs. (ie Software is in the clear, geographica databases are not.) And that can be disclaimed with words to the effect of, "There is no warranty against interference with your enjoyment of the information or against infringement."

    Cheers,
    Ben

  • I have been thinking about the GPL lately (Score:3)

    by tilly ( 7530 ) on Tuesday June 27, 2000 @02:39PM (#972471)
    Here is the license [gnu.org] and from a previous discussion, some of my analysis [slashdot.org].

    However when it comes to warranties, I am somewhat concerned. Term 5 explicitly says that you can use the software without accepting the license. Terms 11 and 12 are the disclaimer. What happens if Joe random user uses Linux, loses data because of a kernel bug, and then sues Linus saying that he had used the software but never agreed to the GPL as is his right (see term 5) and therefore had never accepted that Linus is not liable for any loss of data and business on his part!

    What next?

    Regards,
    Ben

  • Re:Unfortunetly (Score:3)

    by FigWig ( 10981 ) on Tuesday June 27, 2000 @04:22PM (#972472) Homepage
    Which court decided that copying from one memory to another was infringing? Do you have any further information?

    MAI Systems Corp v. Peak Computer, Inc, 991 F.2d 511, 518 (9th Cir. 1993)

    I hope that's the proper way to cite a court decision, I'm just copying it from a text. Basically a third party repair company was barred from repairing computers running a certain OS because they had to load the OS into RAM to repair it - thus breaking copyright. This is similar to the Sega v. Acclaim case in which Sega claimed Acclaim violated their copyright in the process of reverse engineering because they must have made a copy of the software. Sega lost that one. Pretty lame methinks. I believe that the Copyright act of 1980 was ammended in 1998 to fix this stupidity, but I'm not sure if decisions after this date were saner.



  • Foolish (Score:3)

    by seizer ( 16950 ) on Tuesday June 27, 2000 @02:35PM (#972473) Homepage
    Not quite sure what this means because certainly, there are no details worth talking about yet.

    But instead of the status quo ("This software might do anything, and it's not our fault"), I can just see companies changing this to "This software might do anything, but, if used correctly, it'll do this"). Perfectly open, perfectly truthful, yet completely useless anyway.

    Then, when Scandisk destroys your partitions (It's actually happened to me, somehow, no idea why) Microsoft will just stand up and say "well, the user obviously wasn't using the software correctly".

    I see little change. It's legal mumbo jumbo.


    --Remove SPAM from my address to mail me

  • Re:How to have your cake and eat it (Score:3)

    by Björn Stenberg ( 32494 ) on Wednesday June 28, 2000 @03:10AM (#972474) Homepage
    commercial software should be warrantied, byt free software should be exempt, for who knows what reason

    Isn't it rather obvious?

    If you pay $20K for a new car, you expect to get a working car. If it doesn't work, you have the right to repair, refund or replacement. It stems from the basic concept that your money should be exchanged for a good of similar worth.

    If, on the other hand, I give you a car, you have no right to expect anything from it. It could break down in a mile for all you know, and there's nothing you can do about it short of giving it back or rejecting the gift from the start.

    Anything gratis is a gift. Gifts are never warranted. (If they were, who would give toys to kids? ;-))

  • Re: Coffee urban legend (Score:3)

    by coyote-san ( 38515 ) on Tuesday June 27, 2000 @04:04PM (#972475)
    Argh! Whatever you think you know about the McDonald's "coffee" suit, it's wrong. It's been discussed before repeatedly on both Slashdot and elsewhere, so I'm not going to repeat it yet again here.

    However, if you really want to believe that Rush Limbaugh and the like are the only ones with the guts (no pun intended) to report the "real" story - without all of the distracting "trivia" that the rest of us insist is important (like the fact that this coffee was served something like 20F hotter than at any other restaurant in town, or that the manager ignored multiple prior credible scalding compliants), then there's nothing I can do.

  • There's a simple legal solution (Score:3)

    by anatoli ( 74215 ) on Tuesday June 27, 2000 @09:42PM (#972476) Homepage
    wrt warranties and such. (IANAL of course).

    Create a non-profit organization or two (or two hundred, for that matter) which will assume all legal responsibility for (some part of) free-{speech,beer} software. Such an organization will have a yearly budget of about, oh, $50.00 (I feel generous today). So some Joe Schmoe decides to sue such an organization, and it wents belly up. Who fscking cares? Another one will be created tomorrow.

    If I were an American, I would do it today. But I'm not, so I leave this task to you.

    One small personal request: if you do create such an organization, please name it FUNT. I can't make up a phrase that FUNT would stand for, so please do it yourself if you feel like it. May seem strange to you, but don't worry, it makes a perfect sense.
    --

  • Free Software must have warranty. And Commercial can get away with a shrink-wrap license? How the fuck does that work?

  • IP laws and free IP (Score:3)

    by browser_war_pow ( 100778 ) on Tuesday June 27, 2000 @04:24PM (#972478) Homepage
    It seems to me that the IP laws are being designed these days to DISCOURAGE people from making their IP freely availible to the public. UCITA is a perfect example of this. Everyone knows that the average free software coder can't afford to give warranties for his/her software.

    Another issue is that our government is getting ridiculous with its favoritism. It seeks to stifle one form of creation, coding, to protect another, dvd movies. The natural conclusion of such a mindset is to punish book authors because reading takes away time that could be spent consuming audio/visual media (rather than printed media).

    It has been of course quite easy (and rightfully so) to be cynical towards modern representative democracy. Special interests control every aspect of the process of getting the leaders that we want or don't want into power. The media powers for all intents and purposes silence the 3rd parties by not allowing them to enter into televised presidential debates, big corporations control the funding of the political parties who are themselves the ultimate special interest group. Until we remove these kinds of road blocks the kind of IP reform we want will not be possible and things like UCITA will popup as often as new cases of AIDS in many of the unfortunate african nations.

  • YANAL and IANAL (Score:3)

    by grammar nazi ( 197303 ) on Tuesday June 27, 2000 @02:51PM (#972479) Journal
    Definitions for the IANALs.

    license
    A special permission to do something on, or with, somebody else's property which, were it not for the license, could be legally prevented or give rise to legal action in tort or trespass. A common example is allowing a person to walk across your lawn which, if it were not for the license, would constitute trespass. Licenses are revocable at will (unless supported by a contract) and, as such, differs from an easement (the latter conveying a legal interest in the land). Licenses which are not based on a contract and which are fully revocable are called "simple" or "bare" licenses. A common example is the shopping mall to which access by the public is on the basis of an implied license.

    warranty
    A guarantee given on the performance of a product or the doing of a certain thing. For example, many consumer products come with warranties under which the manufacturer will repair or replace any product that fails during the warranty period; the commitment to repair or replace being the "warranty".

    contract
    Contract An agreement between persons which obliges each party to do or not to do a certain thing. Technically, a valid contract requires an offer and an acceptance of that offer, and, in common law countries, consideration.

    contract law
    Contract law That body of law which regulates the enforcement of contracts. Contract law has its origins thousands of years as the early civilizations began to trade with each other, a legal system was created to support and to facilitate that trade. The English and French developed similar contract law systems, both referring extensively to old Roman contract law principles such as consensus ad idem or caveat emptor. There are some minor differences on points of detail such as the English law requirement that every contract contain consideration. More and more states are changing their laws to eliminate consideration as a prerequisite to a valid contract thus contributing to the uniformity of law. Contract law is the basis of all commercial dealings from buying a bus ticket to trading on the stock market.

    Source: Duhaimes Law Dictionary [wwlia.org].

  • Re:UCITA Text/Warranties (Score:3)

    by Captain Constitution ( 203455 ) on Tuesday June 27, 2000 @06:00PM (#972480)

    The UCITA is a worthless, unconstitutional piece of legislation. I recommend people look at the illegal search and seizure clause in the 4th Amendment and then look at the UCITA's provision for businesses to revoke ownership rights to software.

    Not only that, it stands in the face of Chapter 2 of the U.S. Code, Title 15, Chapter 2 [cornell.edu] which deals with the Federal Trade Commission and unfair business practices.

    I quote from Section 45 [cornell.edu]: Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful. Surely, the software lobbies pushing UCITA through various state legislatures without public debate is somewhere on the order of deceptive. From the same section: No order of the Commission or judgement of court to enforce the same shall in anywise relieve or absolve any person, partnership, or corporation from any liability. What then is this blanket protection of commercial software houses which allows these companies to sell products that do not function? I have recently found out that a major university purchased a particular room scheduling program. However, this program does not function at all in any capacity related to room scheduling. On top of this, the programmers have no sense of security measures - the program is a steaming pile of useless electrons. Under UCITA, the university that made the purchase can't sue the software house for not delivering a program that should work within a reasonable frame of functionality. And that, my friend, is false advertising ( See Section 55 [cornell.edu] ).

    Software companies should not be allowed to masquerade under false pretenses. From Section 69e [cornell.edu]: the Commission may require whenever such name is used in setting forth the information required by this subchapter, such qualifying statements as it may deem necessary to prevent confusion or deception. Products should function as they are described, and if not, then the description should be changed to match the functionality. The UCITA destroys the liability a company has to produce a product that works within certain specifications by covering companies with an anti-litigious umbrella.

    I would recommend that the respective legislatures and the FTC remember who they are beholden to, and to remember that this country was not founded to support a plutocracy. There are plenty of other dictatorships the world throughout to handle such a form of government.

  • Clarification (Score:4)

    by tbo ( 35008 ) on Tuesday June 27, 2000 @02:41PM (#972481) Journal
    Actually, it's not yet known whether the GPL will legally be considered a contract, a copyright license, or both. This was discussed in the article [linuxplanet.com] linked from a recent Slashdot story [slashdot.org].

    So, the GPL may be affected by UCITA. Of course, the GPL disclaims warranties, so it's in the clear in that respect.

    Still, the death of free software would almost be worthwhile if it meant Microsoft had to comply with strict software warranty laws. :-)

  • How to have your cake and eat it (Score:4)

    by gargle ( 97883 ) on Tuesday June 27, 2000 @03:56PM (#972482) Homepage
    This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors. It's of interest for proprietary software users because the warranties attached to software that you pay for are generally considered inadequate.

    i.e. Giving warranties is a good thing, except when I have to do it.

  • Some good thoughts: (Score:4)

    by Phr3n3tik ( 192379 ) <me @ g avitron.com> on Tuesday June 27, 2000 @02:30PM (#972483) Homepage
    UCITA will not give rise to new warranty obligations. Much confusion is created by the word "license." UCITA is contract law, and when it refers to a license, it means a contract. OTOH, the GPL* is a different type of license - a copyright license. The mere act of person A writing and releasing a piece of open-source software, and person B using that software, does not form a contract. Therefore neither A nor B is subject to the provisions of UCITA. Even if somehow A was found to be covered by UCITA, section 406 expressly permits the disclaimer of warranties. The GPL* includes such a disclaimer, so A is off the hook. *Note: this also applies to other popular open-source licenses like the BSD, X, and Artistic licenses.

  • my response (Score:5)

    by Luyseyal ( 3154 ) <swaters AT luy DOT info> on Tuesday June 27, 2000 @03:59PM (#972484) Homepage

    This is far from "perfect," but it's the best I could manage.

    ------------
    1. Personal Background--I am the Internal Systems Administrator for a small internet company in Austin, TX. Our business both consumes and produces software, so I am very familiar with the issues at hand. In many instances, I have to evaluate software for purchase so warranty regulation is a concern for me in the workplace. Additionally, I use a computer at home and software reliability is a concern there as well.

    2. In the interest of intellectual honesty, I should disclose that I believe the notion of "intellectual property" is patently absurd (pun intended). However, as current law is based on said notion, this response will address the issue as given. Eben Moglen, attorney for the Free Software Foundation, http://fsf.org, and Professor of Law and Legal History at Columbia Law School, has written an excellent paper on this very subject at http://emoglen.law.columbia.edu/my_pubs/anarchism. html.

    3. Occupationally and personally, I am very involved with Free Software. Typically, licenses for such software disclaims warranties of any sort as the authors usually give the software away including human-readable source code (e.g., http://www.fsf.org/copyleft/gpl.html). The authors of such software often have neither the legal expertise nor the financial backing to warranty their software. Rather, they give the source code itself away as a replacement for a warranty. The source code gives the consumer the ability to examine for herself whether a given program is reliable and well-engineered. If the consumer is not capable of reading source code, or is simply too busy to do so, she has several options available. Many Free Software projects have homepages, mailing-lists, and large numbers of current users. It is not difficult to find information on the reliability of the software, even if forced to email the original author (which is sometimes the case if the project is a niche project of interest to only a few people).

    4. Additionally, many companies offer "support" (telephone help-desk support, specially tested packages of Free Software, security auditing, custom software development, etc.) for Free Software (e.g., http://www.redhat.com, http://www.linuxcare.com, etc.), even though the software itself is not warranted. This suggests that the companies are confident enough in Free Software such that they may reap profits from unused support.

    5. It could be argued that these companies would want the software to be shoddy so that more consumers would pay for support. However, this view ignores the fact that support companies are more like insurance companies: they are there when you need them. Legality aside, it is not in the best interest of a medical insurance company to pay ruffians to maim their customers in order to drive up demand as the payout for each claim is significantly higher than the loss of demand for medical insurance. Similarly, it is significantly cheaper for a support company to pool its resources into providing good software in the first place rather than providing costly telephone or emergency source code-level support.

    6. While it still might seem that Free Software is more likely to need warranting against ill-effects than proprietary software, one need only witness why many Free Software projects arise in the first place. Often, a proprietary product that fills a particular niche is unstable, less than featureful, or generally not well-supported. An industrious coder will want to "scratch that itch," so to speak, and starts a project to create a free alternative. The Linux kernel, http://linux.org, SAMBA, http://samba.org, and many other Free Software projects are good examples of this. Linus Torvalds was unhappy with the sad shape of consumer operating systems available for his lowly 386 and set out to create an alternative kernel to run on the tools created by the GNU project, http://gnu.org. SAMBA exists due to users unwilling to run an unstable operating system or pay insane amounts in licensing fees simply to serve files to others still using legacy proprietary systems.

    7. In essence, Free Software exists in part due to market failure. Instead of wooing customers with good products and good service, many proprietary software sought to lock consumers into their products and intentionally implanted incompatibilities to force customers to upgrade or be left behind, less able to effectively communicate with their partners who were licensed newer versions. Unwilling to sacrifice money or features to these ingrates, coders like Torvalds opted to create their own software and license it in such a way that it couldn't be coopted by unfaithful companies. Although Linux did not come along until 1991, the aforementioned GNU project was founded by Richard Stallman in the Eighties to combat the same sorts of tactics used by the old Unix vendors before the advent of the near ubiquitous consumer desktop.

    8. Consequently, it is only because of negligent proprietary software vendors that laws requiring software to be warranted appear necessary. Not surprisingly, they are the same people pushing bills like UCITA which require nominal warranties on software as they are betting they can have Free Software effectively outlawed. In exchange for their granting of nominal warranties to consumers, they demand draconian rights such as legal remote removal of so-called "pirated" software. If this sort of government-corporate collusion is allowed to pass, then I am moving myself and my tax dollars elsewhere.

    9. Lastly, many Free Software projects are collaborations involving individuals in many different countries. It would seem the height of folly to require them to follow stringent legal requirements, such as those detailed in UCITA, for distributing their products in the USA. As foreign coders cannot be expected to understand the vagaries of English legalese, they would have to hire a US-based attorney to review the warranty on their product. One can imagine the likelihood of that given the cost of such attorneys. It would be a shame to lose foreign contributors as, unlike in many physical object trade disputes which affect trade deficits and surpluses, software cum source code increases the intellectual wealth in all countries involved.

    10. I would like to thank the FTC for allowing citizens to comment in such a convenient format as email. Hopefully, all such government agencies will one day be able to gather direct feedback from the citizenry so easily.

    --
    Stephen Waters
    Austin, TX

  • My preferred warranty:

    WARRANTY

    The accompanying software is guaranteed to operate in exact accordance with the source code provided, under condition that it is compiled using an error-free compiler and executed on error-free hardware.

  • Re:#define PEDANTIC (Score:5)

    by The Famous Brett Wat ( 12688 ) on Tuesday June 27, 2000 @08:33PM (#972486) Homepage Journal

    What about undefined constructs in the language?

    Then it is guaranteed to operate in an undefined manner. How simple is that?

  • raise your voice (Score:5)

    by Tiro ( 19535 ) on Tuesday June 27, 2000 @04:45PM (#972487) Journal
    This is a truly great opporitunity for people who care about this issue to make an impact.

    Slashdotters really must learn that, to make things better, they should take time out of their day and put pen to paper and write to their elected officials.

    Hell, it doesn't even take a full-blown letter campaign, just the thoughts of a few concerned citizens. You must realize that for every letter you write, you counter the efforts of a corporation plus some (you are not only a concerned individual, you are also a constituant and a voter).

    If the corp. decides to bring out the big gun lobbyists and big $$$ contributions, that weakens you but you should use the opporitunity to bring in your friends and associates and fight harder.

    Have you ever put your name on one of those internet petitions? I have. But in reality, if I was a Senator or the cabinet I would put as much weight on two or three written letters from my constituents as I would on a net petition, even if it was signed by 500 or 5000 and printed out on HP laser jets and sent FedEx. The letter really has that much more weight.

    Its time for the bitching and rhetoric on these /. boards to stop. Specifically, the "Why don't things change?" bit. The energy can be much better spent influencing the people that matter, rather than convincing our own brethren of the obvious truths and blatant injustices we see more and more often in the /. news these days.

    So, write the FCC, write to your elected legislators to change the laws, and have a nice day.

  • 1. Be polite. The last thing we need is for representatives' mailboxes to overflow with hundreds of YOU SUCK FOR VOTING FOR UCITA!!! messages.

    2. Speling counts (pun intended). We want to present the impression of responsible, concerned people who are worried about how this law may affect them. a bunch of peoplz riting like this wil get no responses. We don't want to make the impression that the opposition consists only of crackers and 14-year-olds.

    3. Almost without a doubt, someone will post an example letter showing the correct way of showing your opposition. Use this, but don't copy it word for word. Hundreds of identical letters will inevitably be dismissed as a campaign. Be unique and your voice will count.

    4. State the facts. Using plain english, explain why this bill is bad. No technical terms, no hyperbole, and no distortion of the facts. We have enough evidence that there is no need to make something up, and the negative results from that could be devastating.

    5. And again, be polite. I've said it once before but I'm saying it again, in order to get it thoroughly drilled into people's heads. I cannot stress this enough.

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