|From: Richard E. Barry
Date: Sat, May 13, 2000 10:47 PM
Subject: Re: FTC Symposium on High Tech Warranties
In a message dated 5/12/00 1:49:16 PM Eastern Daylight Time, ACOHN@ftc.gov writes:
<< Last week, the The Federal Trade Commission announced that it plans to hold a public forum to examine warranty protection for software and other computer information products and services. The FTC has specifically sought comment on a number of issues relating to shrinkwrap licenses, UCITA, and the applicability of the Magnuson Moss Warranty Act. The FTC is requesting academic papers and public comment to inform this examination. >>
Dear Mr. Cohn:
As a member of the board of the Computer Professionals for Social Responsibility, I can assure you that CPSR has many serious concerns about the issues you have raised. Computer Professionals for Social Responsibility www.cpsr.org is a non-profit, public interest organization that addresses benefits and risks to society resulting from the use of computers. It is financed mainly by membership dues. You will find information on our concerns at the CPSR website. I draw your attention in particular to a letter that I wrote to several Virginia legislators on the UCITA legislation at http://www.cpsr.org/program/UCITA/barry_ucita.html.
Among other things, UCITA would permit software companies to exonerate themselves of responsibility even if their products were to include a virus such as the Love Virus.
UCITA just engraves in the law what the developers are already doing. If you have Windows Upgrade software, and I assume the same for Windows proper, you will find that you have already agreed to the following paragraph in ALL CAPS (which as I understand it the law requires for particularly outrageous clauses and to which, of course, you have already agreed):
"DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT AND ITS SUPPLIERS PROVIDE TO YOU THE OS COMPONENTS, AND ANY (IF ANY) SUPPORT SERVICES RELATED TO THE OS COMPONENTS ("SUPPORT SERVICES") AS IS AND WITH ALL FAULTS; AND MICROSOFT AND ITS SUPPLIERS HEREBY DISCLAIM WITH RESPECT TO THE OS COMPONENTS AND SUPPORT SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO:
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE OS COMPONENTS AND ANY SUPPORT SERVICES REMAINS WITH YOU."
The same or similar language is in the IE5 license. And it is not limited to Microsoft. While some don't specify viruses, they typically have broad enough language to avoid liability, except that they carefully state that such exclusions may not be allowed under certain state laws in which case they do not apply. IOW, if you have consumer oriented legislatures, they don't allow such license language to be used in their states. On the other hand, it only takes one state to pass draconian laws and the vendors can
stipulate that their products are licensed in that state. Which is in large part why VA and MD were in the race to be first to pass UCITA.
In short, rather than endorsing and further legitimizing current practices, UCITA should proscribe such practices.
Please do not hesitate to contact me if I can be of futher assistance.
Richard E. Barry