December 06, 2000, 10:50 AM — UCITA isn't just bad news for software customers. Ultimately, it's also going to be
bad for the software industry. Or, better said, it's going to encourage business
practices which I believe are already harming innovation and competitiveness in the
American software industry.
In my role as InfoWorld's "reader advocate" and Gripe Line columnist, a big part of
my job is to listen to the problems and difficulties InfoWorld readers have in dealing
with software companies. For a long time now I've felt there is a real problem in the
way the software industry treats its customers. In what other industry will a company
take your money for a product that doesn't actually exist yet, or charge you $2 per
minute to report a flaw in its product, or tell you that its product comes with no
guarantee that it even works?
A cure for 'known bug' syndrome?
The reason I first got involved with Article 2B, UCITA's predecessor, was in
response to readers' complaints about the "known bug" syndrome -- the common experience
of discovering that a problem you've spent hours, days, or weeks trying to overcome is
due to a bug or conflict that the software publisher knew about all along but chose not
to make public. It's strange to think there'd even be an argument about it -- why
shouldn't a software publisher have some form of legal responsibility for the damage
caused by a bug they chose to keep secret? But that's not the way the industry wants to
play the game.
When I first heard about Article 2B, it sounded to me like it could be the ideal
vehicle for a law that would motivate publishers to be forthcoming with information
about their known bugs. That's because the UCC is a set of default rules governing
commercial disputes, so it would not require any regulatory agencies or government
spending to have an impact in this regard. But my original optimism soon faded as I
discovered how heavily the draft was weighted in favor of sanctifying the very same
industry practices that I was worried about.
Reinforcing 'worst practices'
Far from rectifying the imbalance between software publisher and software customer,
UCITA will reinforce the software industry in its worst practices. One of the few
checks on companies who are willing to risk their customers' well-being with poorly
tested and poorly debugged products has been the uncertainty of whether the terms of
their shrinkwrap licenses would actually protect them in court. Article 2B would remove
that uncertainty, and in the opinion of legal experts representing consumer
organizations would allow publishers in most circumstances to hide behind their
standard disclaimers of all warranties, mandatory arbitration clauses, exclusion of
damage awards, etc.