|From: "Clayton S. Chan"
Date: Thu, Sep 7, 2000 7:47 PM
Subject: High-Tech Warranty Project -- Comment, P994413
Well, first off, let me state that I am just an average, ordinary public citizen. I really don't have any idea of how this is supposed to work, so if I've done something horribly wrong, I'm hoping you can see the merits in what I'm writing instead of just passing me off as some sort of ignorant fool just because I haven't the proper knowledge of how this is supposed to be filled out. I'm just going to go ahead and give you my thoughts on each point I feel I'm knowledgable enough to address from point 1 on down. Thanks for bearing with me.
1. If we have any real warranty protections, somebody's keeping it under wraps pretty good. Generally, we, as counsumers get 60 to 90 days to return the software for a replacement copy. Trying to get anything more than that is a joke. We, as software purchasers are probably the most maligned group of consumers in the entire market.
I can count on one hand the number of pieces of software I've bought in the last 5 years that have worked with any of my numerous systems off of the first install. In contrast, I can't honestly recall how many pieces of software that I've bought, be it a game, an operating system, a compiler, etc. that has utterly and completely failed to anything besides crash my system.
None of the software stores in the area will do anything in terms of refunding aside from MAYBE giving me a different copy of the software. This is utterly unfair. I don't even see how it's legal from a layperson's standpoint. I'm paying for a piece of software that is supposed to the things advertised on a box, but instead of that, I get a piece of software that doesn't even WORK, much less do what it is supposed to. When I did this in college, my program was failed. Why just because it is backed by a big company and lots of money is it now, not only passable, but an industry standard practice?
Something needs to be done for consumer rights in the software area, and it's been necessary for the last 10 years. Something needs to be done now, before these companies get too big and too powerful to ever be changed, if that hasn't already happened.
2. The expectations I have when I buy a product is that it is stable, that it works on the majority of major operating systems and majority of parts on the market, and that if there are bugs they aren't bugs that detract from the core functionality of the program.
For example, if I buy an operating system, every basic function should work, as well as most of the advanced functions. If I buy a Word Processor, I should most definitely be able to create documents, save, spellcheck, print, and save my documents. If it is a game, there is NO way it should crash, and it should have a reasonable framerate on the Required specifications.
My expectations are far from being met. I'm sincerely hoping that you in the FTC can do something to aid in this regard.
3. As far as I know, I really have NO recourse when something doesn't work right. If I buy a game, the publisher will generally not take it back. If they do take it back, they make it nearly impossible for you to ever know that, because every representative I've ever talked to on the phone, or email, has told me to just wait for a patch, or I should try and take it back to the store, who of course, will only give me another copy of the same defective code. Doesn't anyone see that this is just a big scam? You can't do this with ANY other product group, and yet the software industry thinks it's their RIGHT. It's high time something changed.
If there is a recourse, and I don't know about, it' needs to be made patently obvious. Return policies are obvious on everything else, cereal, radios, TV's, why does the software industry get away with being able to run you around? It's not fair, and it's not right.
4. Consumers are not able to easily comparison shop based on warranty agreements. They nearly all the same anyway, so it's not like it'd do much good. Of all the times I've bought software over the internet, or in a store I have never been able to see the terms of the warranty without opening the box, and most of the times, automatically agreeing to the terms of service, although I suppose I could just come up with ingenious methods of opening the packages to never agree to any of that stuff. Anything in regards to warranties or service in the software industry can ever be referred to as "easy" for the consumer.
5. No. It's really that simple. I'm sure it's efficient from the manufacturer's end, but there's nothing easy to understand, convenient, or efficient from where I stand.
6. NO. Industry standard is to just release defective software to the public and then expect them to wait for a patch. There is no means for you to exact a recourse any other way, and now, as I understand the UCITA, the manufacturer can tell you to remove any negative remarks you have about their products. How's that for having you where they want you? Defective software is the only type of software released nowadays. Of the last 5 software purchases I made, Microsoft's Allegiance, Starlancer, Shogun, Deus Ex, and Tachyon: The Fringe, only Shogun worked without errors. Allegiance, Starlancer, and Tachyon ALL crashed repeatedly and Deus Ex had a problem with OpenGL video cards, which is, of course, the type I have. What could I do? What could any of the people suffering a similar fate do? Nothing. And if we could do something about it, the time and effort we spent trying to get our money back would have ended up costing us more than the software did in the first place. I'm the everyman here. If there's some way, shape, or form to exact some repayment from the offending company, I don't know about it, and neither does anyone else that I've met who has been in a similar situation. I'm sure you would find it the same 95% of the country over. Don't let the industry big wigs fool you by pulling some little know subparagraph out of the depths of some provision. If there's a way, the public doesn't know it, or belive me, there'd be hell to pay.
7(a). The UCITA would screw customers. I'm not just saying this because I'm a techie. Just look at the provisions. Why do I have no right of first sale anymore with the UCITA? "UCITA 503(2), 'a term prohibiting transfer of a party's interest is enforceable, and a transfer made in violation of that term is a breach of contract and is ineffective.'" UCITA prevents me from telling people that the software is defective via this in Section 307(b) "If a license expressly limits use of the information or informational rights, use in any other manner is a breach of contract." Some companies like Apogee and McAfee have already written broad free-speech restrictions taking away your abilities to post any benchmarks of the software, post reviews of the software, or "use the trademarks negatively". What makes software developers think they should have more rights than any other goods or service provider in existance today? There is no reason for these clauses except to hurt the consumer, to keep things about their product hidden until the user purchases it, and then cannot return it. What's worse is it looks like this is only a step towards what one can assume is the inevitable...a master legislative plan giving them even more rights. If UCITA comes into play in its current form, they'll have the bases loaded, and their clean-up hitter batting next. You CAN'T let this go. If you want the goverment at least keep the facade that it even remotely works for the the people, this has to be struck down.
7(b). The role you need to play is precisely the same role the government plays as a part of every other industry. Make sure the warranty terms are clearly stated on the back of the box, and give customer the easy ability to return the product for a refund. That's it...just make them follow the rules. The ARE no special exceptions for them, make them play by the rules that are already in place. Don't listen to what they have to say about software piracy and all that garbage. When the preventative measure to stop it give them more power than the damage they were being dealt, that's power that they don't need to have.
7(c). Yes there are, but I wouldn't know about them...I'm not knowledgeable in that area.
8.(a/c) There is no reason to make that characerization that benefits the customer in any way, shape, or form. Licenses can expire or be granted on very stringent requirements. A sale guarantees the customer certain privledges, like the ability to use that software on a different system if they upgrade, or even if they have the same system and swap in different parts. Microsoft is already trying to screw customers by "renting" out software instead of giving them legitimate copies of it. CD copies of the software are no longer given out free with the purchase of your system. Instead, they give you a license, and it will ONLY work on that individiual system which your purchased it for, it's registry locked. Imagine a music CD you were only allowed to play on one stereo, or a movie you were only allowed to view from one VCR. I am not versed enough in law to speak on the legal concerns this would have, but the impact that would have on my everday life is enough for me, an average citizen to take time out of my day to write this. You CANNOT let the software makers have this much power, just look at how much they abuse the power they have now...do you think this is going to make it better for consumers?
8.(d) What real reason is there to treat this any differently? Music, books, etc can all be copied very easily, people don't do it enough to merit some mass-market punishment, and the same is true for software. Just because the software industry says they need it doesn't mean that they do.
I can no longer write on this subject...this has all been during the course of one sitting, and my mind is fried now. I'll try and write more later on the latter half of the topics, but I wanted to make sure that I at least spoke my bit on the horrific possibilties in store if the UCITA is encated in full force. Ignore the dollars and suits on the software side of the table...otherwise your children are going to end up paying a horrible toll.
-Clayton S. Chan