If you're an MSN user who happens to live in Maryland, you've been violating Microsoft Corp.'s terms of use for over six months now, as well as the laws of your state -- laws that, not coincidentally, include the Uniform Computer Information Transactions Act (UCITA).
A few weeks ago, a story briefly circulated on the Internet about the terms of Microsoft's Passport sign-on service conflicting with the version of UCITA already enacted in Maryland. One enterprising soul had noticed a spot where the Passport license said that use of the service "is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions."
Whereas Maryland's version of UCITA gives jurisdiction to Maryland, Microsoft insists that jurisdiction for the use of Passport resides in the law and courts of Washington state. As a result of this conflict, it appears that Maryland residents are not allowed to use the Microsoft service.
Although this conflict did seem to be an amusing instance of both Microsoft and the legislative sponsors of UCITA in Maryland getting hoisted on their own petards, I at first didn't see any significant consequences to all this legal snafu. Passport is a free service, and Maryland's version of UCITA includes an escape hatch for free products, designed in part at the behest of open-source software advocates. But then I remembered that the Passport license is subsidiary to the license for MSN; so I checked the license terms of MSN.
Sure enough, the identical "unauthorized in any jurisdiction" language was in not only the MSN license but also the licenses of most of Microsoft's Web services, including Expedia, Hotmail, Encarta, bCentral, and so on. In point of fact, then, Maryland residents who use Microsoft online services, including many who paid good money for them, have been doing so illegally. Sorry, but that is what happens when you live in a state that has made all these ridiculous license terms enforceable by law.
UCITA's proponents might argue that the law is not supposed to work this way. There's some truth to that. As we've mentioned before, Maryland's version of UCITA is a hybrid beast. Rather than strictly following the model draft, Maryland's lawmakers devised amendments to make the law conform with existing state consumer-protection laws. The protections are limited to consumer transactions as UCITA narrowly defines them; nonetheless, they appear to apply to most of Microsoft's online services. (I should point out that it's not necessary for a state to pass UCITA to protect its consumers this way; much the same effect is achieved by the anti-UCITA "bomb shelter" laws that have been passed or are under consideration in various states.) Thus Microsoft's customers find themselves inadvertently running afoul of a law that Microsoft itself worked so hard to push through the Maryland legislature.
Happily, I can now report that Microsoft has decided not to begin raiding the homes of all those illicit MSN users in Maryland. In fact, by the time they read this, Microsoft's Maryland customers might no longer be on the wrong side of the law. Just before press time, a Microsoft representative informed me that Microsoft plans to remove the "unauthorized in any jurisdiction" language from at least the MSN and Passport terms of use. Microsoft will look at the terms of other services to see whether they will need to be changed as well. This redraft, by the way, will be the second time in a little more than a month that Microsoft will have changed the Passport license; a minifuror in late March forced Microsoft to rephrase one of the license's overreaching content-grabbing terms.
I'm sure you feel as much sympathy as I do for those poor Microsoft legal types who are burning the midnight oil as they redo their handiwork. It's not as much sympathy as I feel for the residents of Maryland, who should take this as object lesson of the fact that they now must pay very close attention to the mind-numbing legalese that lurks behind most high-tech products. Perhaps Microsoft didn't mean for any of this to happen, but somebody else might.
Choice-of-law rewrite at center of storm
But I'm not entirely convinced that Microsoft was unaware of how its Web service terms would apply in Maryland. One little piece of evidence hints that the company may have knowingly created this conflict with Maryland's version of UCITA. I happen to have a copy of the MSN license as it existed last September, just before UCITA became law in Maryland. It's almost identical to today's uncorrected version, including the unauthorized-use clause.
But the whole choice-of-law section is prefaced with the phrase "Except where prohibited by applicable law." Had that phrase been kept in the license, I don't think this situation would have come up. As it's a boilerplate phrase commonly used in this context, it seems odd that Microsoft's lawyers would excise the exception. There must have been a reason.
I have a theory about what that reason is. We'll explore that next week by shifting our gaze south of the Potomac River to Virginia, where UCITA is just a few short weeks from becoming law.
Got a complaint about how a vendor is treating you? Contact InfoWorld's reader advocate, Ed Foster, at gripe@infoworld.com.
