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UCITA: Legalized lying
LinuxWorld.com 4/11/01
Wallace Stevens was famous for writing poetry that can be difficult to grok. As a poet, he gave us many gems, among them a poem called "The Sense of the Sleight-of-hand Man." On one level, that poem seems to me to say that if one can imagine something, it can happen. The Uniform Computer Information Transaction Act (UCITA) says something very similar. UCITA says that if a large software publisher can imagine terms more favorable to itself than to the customer, it can make them real. The poem is art. UCITA is a crime against consumers. |
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Those who favor the act say that it offers protection to both consumers and vendors, and that it provides a common rule of law for all the states so that the computer software industry can thrive in the electronic age. Both arguments are rubbish. UCITA seeks to take back rights under contract law that consumers have already battled for and won. And for anyone who believes a new law is necessary to make the software business profitable, I invite you to inspect the obscene profits earned by Microsoft over each of the past 10 years.
Terms of disservice
UCITA is 50 pages of legalese that twists and turns like a drunken serpent trying to weave itself into a welcome mat. Virginia and Maryland have already passed it into law, and now Texas is considering doing the same. More on the battle for UCITA in Texas later. First, let me present an example (starring none other than Microsoft) of the sort of behavior UCITA allows from large software vendors. It captures the defining essence of the bill and clearly demonstrates the consequences it portends.
Microsoft's Passport Website, a portal that stores the private and financial information needed for consumers to make purchases on the Internet -- makes a bold promise for security and privacy. Its homepage proclaims, "Your Passport is protected by powerful online security technology and a strict privacy policy. You control which sites access it." (See Resources for a link.)
But that is a lie. The problem is that Microsoft doesn't keep the promise of privacy it makes up front. Under UCITA, altering the terms of the contract in this way is legal. In the case of Passport, those terms are obliterated.
The Passport Terms of Use are found on a different page from the one on which the privacy statement appears. I can't even find a link to them from the page where the promise of privacy is made. The terms stipulate that when you send anything to or through Passport, "you are granting Microsoft and its affiliated companies permission to ... use, modify, copy, distribute, transmit, publicly display, publicly perform, reproduce, publish, sublicense, create derivative works from, transfer, or sell any such communication."
That's a pretty strict privacy policy, alright. Microsoft alone has the right to do whatever it pleases with your personal material. And that's true for all the mail you send on Hotmail and all the messages you send with Messenger, as well.
Some of you may be protesting my statements about Hotmail and MSN. Microsoft's rights apply only to the Passport Website, right? Well, not exactly. Microsoft redefines the term "Passport Website" in the Terms of Use. Follow the pea, Grasshopper. The Terms of Use begin, "The Microsoft Passport Web Site is comprised of a Web site and its associated services and is operated by Microsoft Corporation ('Microsoft')." Elsewhere on the site (see Resources for a link) MSN Messenger, Hotmail, and MoneyCentral are identified as "Passport Sites." Are you beginning to get the sense of the sleight-of-hand going on here?
That bait-and-switch technique is a core principle in UCITA. The act gives the vendor the right not only to hide contract terms until after the purchase is made, but also to alter or disavow terms stated up front, both those stipulated by the vendor and by UCITA itself. It's a shell game. Now UCITA, now you don't. UCITA may be a lot of things, most of them damnable, but my dweebs it is most assuredly not for the benefit of consumers. It is for the benefit of large software publishers.
It probably won't surprise you to hear that Richard Stallman is very much against UCITA. In his well-reasoned rant, "Why We Must Fight UCITA" (see Resources for a link) Stallman points out that large commercial firms can dodge the default vendor responsibilities outlined in UCITA by overriding them in shrink-wrapped licensing terms or by posting different terms online. Meanwhile, independent developers, and free software developers in particular, will be held to the higher standard. UCITA backers hold up the meaningless default protections as if they guarantee the rights of consumers.
Stallman's voice is not the only one raised against UCITA. Twenty-four state attorneys general have collaborated on a letter to the National Conference of Commissioners on Uniform State Laws (NCCUSL) to uniformly voice their opposition to the act. They wrote, "We are concerned that the policy choices embodied in these new rules seem to almost invariably favor a relatively small number of vendors to the detriment of millions of businesses and consumers who purchase computer software and subscribe to internet services."
The attorneys general also wrote that they find UCITA's redefinition of the term "conspicuous" to be problematic. In their words, "Section 102(15) defines a term as conspicuous if it is so presented that a reasonable person ought to have noticed it. By focusing solely on whether a term is noticeable, the definition ignores most of the basic principles of communication and is unlikely to result in disclosures actually being communicated."
The Compaq connection
I mentioned at the start that UCITA is currently being entertained by the Texas legislature. The buzz on the street is that UCITA will probably not pass during this session, but that it will be back. The Texas version was introduced by Sen. John Carona, a Republican from Dallas. But the impetus to get UCITA before the Texas legislature seems to have come from Houston, not Dallas. Houston is the home of Compaq Computers, one of the few voices I've heard openly arguing for UCITA. On the same side of the debate is the Business Software Alliance (BSA), perhaps best known as Microsoft's private antipiracy police force. UCITA fits hand in glove with Microsoft's Internet-based software subscription model. So finding the BSA beating the drum for UCITA is no surprise. But why Compaq? It is primarily a hardware firm, not a software publisher.
When I contacted Compaq to ask that question, I was passed to Irene Kosturakis, a senior IP attorney and Compaq's "expert" spokesperson on UCITA. She said Compaq wants to see UCITA enacted in Texas because the company is a software consumer. I suspect it's more likely the folks at Compaq support UCITA because they're terrified of Microsoft. The problem is that UCITA would only increase Microsoft's power.
Kosturakis admits that UCITA faces a tough battle in Texas. But not for her lack of trying. She recently debated an anti-UCITA spokesperson from Boeing Aircraft at a meeting in Dallas. Contrary to what I would have guessed, Kosturakis told me it was the Business Section of the State Bar of Texas that asked Sen. Carona to sponsor the bill, not Microsoft or Compaq.
After speaking to Kosturakis, I called Lisa Meyerhoff, chair of the Computer and Technology Section of the State Bar, to ask why the referral for UCITA came from the Business Section rather than the Computer and Technology Section.
Meyerhoff told me: "The Business Section had some folks, I believe, within their section who just wanted to see things move forward pretty quickly, and so they were actually pushing on it before we even knew that they were doing that. Since they wanted to take the lead, we thought that was fine." Then I asked whether the Business Section's recommendation represented the views of the State Bar. Meyerhoff said, "The individual sections within the State Bar, like the Computer and Technology Section, or the Business Section, can't represent any official position on behalf of the State Bar."
I have to admit being surprised to hear that. I had come away from my conversation with Kosturakis thinking that the State Bar had endorsed UCITA. But a bigger surprise was waiting for me just around the corner. I found the homepage for the Business Section of the State Bar in order to ask its chairperson the same question I had asked Meyerhoff. Guess whose name I found listed there as co-chair of the E-Commerce Committee, the committee responsible for monitoring bills such as UCITA for the Business Section. That's right. None other than Irene Kosturakis, the pro-UCITA attorney from Compaq (see Resources for a link).
Manifesting dissent
In summary, there are two huge problems with UCITA: the act itself and those parties that are trying to get it passed into law. The problems with UCITA itself may be fixable, if it is rewritten. Ed Foster at InfoWorld recently opined that the Bush administration should help rewrite it (see Resources for a link). The act simply needs to be neutered of all language that allows or encourages deception by the vendors. That would take a lot of work. UCITA is riddled with safe harbors and escape routes for crafty software firms. But it could be done.
The second part of the problem lies with Microsoft, a company famous for its dishonesty. If every software firm in the world were honest and ethical, UCITA wouldn't be so dangerous. But most are not. Microsoft may not be the only dishonest and unethical firm in the world, but it is certainly the largest and most successful of that genre. Microsoft's interest in UCITA, no matter how well masked, is obvious. As I mentioned to Kosturakis, most of the legislators I spoke to who serve on committees that will review UCITA refer to it as "The Microsoft Bill."
You can count on the prospect that if UCITA becomes widely adopted, Microsoft's behavior with its Passport site and services will be just the beginning. No matter that Redmond has recently updated those Terms of Service, they are still a poster child for UCITA. In the new Terms of Service, Microsoft reserves the right to change the terms at any time and stipulates that if you use the service after it has posted a new version, you agree to those changes. UCITA calls that "manifesting assent." I call it a scam by a flim-flam man.
All it will take for Microsoft and UCITA to succeed is for enough of us not to care, or to remain unaware. Then the bill will pass in state after state. Don't let that happen, Grasshopper. Join the resistance. Write a letter. Send an email. Drop a dime. Make sure your elected officials know that you disapprove of the glaring problems that are part and parcel of UCITA. And start by letting me know what you think in the forum.
Discuss this article in the Version Control discussion on ITworld.com.
Resources
Academy of American Poets: http://www.poets.org
AFFECT: Americans for Fair Electronic Commerce Transactions http://www.4CITE.org/
"Federal Redrafting of the UCITA Law Could Benefit Everyone -- Including Bush," Ed Foster (InfoWorld, March 26, 2001): http://www.infoworld.com/articles/op/xml/01/03/26/010326opfoster.xml
Passport Website: http://www.passport.com/
Passport Terms of Use: http://www.passport.com/Consumer/TermsOfUse.asp
Richard Stallman on UCITA: http://www.gnu.org/philosophy/ucita.html
Business Section of the Texas State Bar: http://www.texasbusinesslaw.org/index.html
Texas Senate Bill 709 (UCITA): http://tlo2.tlc.state.tx.us/cgi-bin/tlo/textframe.cmd?LEG=77&SESS=R&CHAMBER=S&BILLTYPE=B&BILLSUFFIX=00709&VERSION=1&TYPE=B
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