[KLUG Advocacy] WHY WE LOVE THE GPL!!! Reason #479... & UCITA, the undead

[mag00]

Hey now...  Linux Advocates!  Here is a scathing rant... 
Sorry that this RANT is so long, we felt it was necessary!
We are polyphonicians regardless of WHY you love Linux!!!



W H Y   T H E   G P L   I S   S O   V A L U A B L E   T O   U S ! ! !
<why it sets us free from all the trickery of the M$ world dominator>

T H E   O P E N   S O U R C E   O / S   F I G H T S   C O R R U P T I O N  !
<just ask Richard Stallman - GNU Project - Free Software Foundation>

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

It is NOT just the anti-competitive business tactics,
the buggy code that 'blue screens' at the worst possible
moments, the social/political domination influences...
of the million lines of MICRO$UCK'S bloat code we call
the Windows OS!    M $    L I C E N S I N G    B L O W S ! ! !

THE  DAMN  M$  E U L A   VAGERIES ARE ENOUGH TO MAKE ONE CRAZIER!!!
Ed Foster - Readers Advocate put it all so well recently...

Ever hear of the UCITA?  Better know about it now... contact your 
political representatives and tell them UCITA stinks real bad!


L8r  mag00  <grin>

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The Gripe Line   (Copyrighted by www.infoworld.com)
Ed Foster  
  
 Disclosing terms 

IF SOFTWARE VENDORS want their shrinkwrap/clickwrap agreements treated as
real contracts, why won't they let us read them before we put our money down?

This isn't quite as simple a question as it may first seem. In the early
days of shrinkwrap licenses, the formal answer was that there wasn't room
on the packages for both the license and the software publisher's marketing
stuff, so the license had to go inside. But in the Web era, there's no good
excuse for not posting the current license agreement for a product.
Internet services do it routinely -- why can't software companies?

Some do, but a perusal of the Web sites for the larger software companies
turned up very few EULAs (end-user license agreements). Many of those were
out-of-date or were in such odd places it took just the right search
criteria to find them. Only Adobe had a page specifically dedicated to
providing EULAs for its products with links to it from several logical places.

The largest software company of them all has given some readers reason to
believe its lack of posted EULAs is no oversight. "Microsoft has flatly
refused to provide me with a copy of the license agreement for any
Microsoft software," wrote one reader after calling Microsoft's consumer
sales information line. "I was told that I must purchase the software first
in order to read the license agreement and that ... after I purchase their
software, I have 30 days to return it to Microsoft or to the retailer if I
do not agree with the Microsoft license agreement. I was told by Microsoft
that in order to ėsee' the agreement, I at least have to purchase and to
open the software, and I probably have to commence installation of the
software in order to see/read the license agreement and indicate whether I
accept or decline it. ... Am I crazy for wanting to see a copy of the
license agreement wording before purchasing the software?"

Now, some of you might be thinking that this reader is indeed crazy. After
all, EULAs are all the same, aren't they? So what's the point whether you
can read them ahead of time or not?

Don't forget that, as alert readers have discovered, some but not all
Microsoft license agreements contain such gems as customers agreeing to not
disparage Microsoft, or to let Microsoft automatically download operating
system updates, or to not make any benchmark results public without
Microsoft's permission. And having nasty surprises lurking in their license
agreement is one area where Microsoft doesn't have a monopoly, as we've
seen recently with Symantec and McAfee.

Beyond the surprising terms, though, a more basic reason to want to see the
license agreement before you buy a product is to know what return rights,
if any, you are being granted. Many EULAs of course tell you the software
is sold completely as is or with just a limited warranty for media defects.
But with a number of consumer-level products, including some of
Microsoft's, the user may have 30 or 60 days to return the product if not
completely satisfied. Often the only way to find out if you have a
money-back guarantee or not is to read the EULA. You'd think the software
companies that offer such a warranty would promote the fact prominently on
their Web site or on the product packaging, but frequently they don't. It's
as if software companies don't want customers to be able to comparison shop
for the most favorable terms, even when their terms are the best. Why?

In hopes of finding a clue to this riddle, I decided to try duplicating the
efforts of the reader whose pleas to see the EULA before the sale were
rejected by Microsoft. First I searched the company's Web site as
diligently as possible for any EULAs, but outside of the posted Purchase
Use Rights agreement (where readers first spotted the terms giving
Microsoft rights to automatically download XP updates) that supplements
Select volume license agreements, I found only one current license.
Ironically, it was the new FrontPage EULA, now minus the "no disparaging
Microsoft" term. It was not there last year when I was confirming the
existence of that term, so I guess it's there now to show it's OK to
disparage Microsoft after all. Good thing.

The site for Microsoft's online store includes a notice that some of its
products come with a "limited warranty" in the license agreement while
others are sold as is. As a customer service number was listed for those
who want to "obtain a free copy of the Limited Warranty," I thought I could
surely get any EULA I wanted there. But when I called and asked the
customer service representative how I could go about seeing the EULA for
PowerPoint before buying the product, she was uncertain. What did I
specifically want to know, she asked. When I said I was primarily
interested in the warranty, she assured me it had a 30-day money back
guarantee, although she couldn't confirm that the PowerPoint EULA says
that. When I said I'd still like to see it for myself, she went off to
check how that might be possible. After a long wait, she returned to say
the only thing she could do was to point me to that FrontPage EULA I'd
already seen posted on Microsoft's site, as she suggested it might be very
similar to PowerPoint's. (It isn't, actually.) The customer service
representative seemed genuinely eager to help, and a little perplexed
herself as to why I couldn't see the license agreement without buying the
product. But that was the way it was.

It is indeed perplexing. Why should a company that wants its license
agreements to be treated as a binding legal contract (binding on the
customer, that is -- Microsoft reserves the right to change its terms at
any time) be so resistant to letting potential customers read that contract
before putting their money down?

I'm not sure, but I know one other place we can look for answers. We've had
clear evidence for many years that Microsoft and other large software
companies don't want their license agreements to be public, and it's called
UCITA. I fear that's a topic to which we must return yet again.


Ed Foster is InfoWorld's reader advocate. Contact him at gripe@infoworld.com. 


The Gripe Line 
Ed Foster  
 
  
 
 UCITA, the undead 

I HAD HOPED by this point I could write UCITA's final obituary. But the
Uniform Computer Information Transactions Act is unfortunately showing no
signs of resting in peace.

UCITA is still walking around in spite of having had more than one stake
driven through its heart in recent months. The realization after Sept. 11
that a law promoting security holes was not in the national interest should
have been a mortal wound all by itself. When that was followed by a
stinging rejection of UCITA as totally unfixable by a strong majority of
the state attorneys general, it was hard to see how any state could
consider enacting it.

And, indeed, over the winter legislative season, it received no serious
attention in any state legislature, while several states actively debated
anti-UCITA bills. Three states (Iowa, West Virginia, and North Carolina)
have now enacted such legislation. Maryland and Virginia remain the only
states to have adopted versions of UCITA itself.

But what I and many other observers assumed would be the final nail in the
coffin was delivered at the end of January. The working group appointed by
the American Bar Association to study and recommend a position for the ABA
to take on UCITA produced a report that, while couched in as polite
language as possible, was nonetheless a scathing indictment, essentially
calling for UCITA to be completely redrafted.

The ABA working group's report noted 10 specific areas of "critical
concerns" it felt had to be addressed. In addition, it had a long list of
recommended changes for specific sections of the current draft. Only one
member of the nine-person panel dissented and filed a minority report in
support of UCITA.

The group's findings were based on the assumption that the amendments
approved in December by the UCITA stand-by drafting committee will be
adopted this summer at the annual meeting of the National Conference of
Commissioners on Uniform State Laws (NCCUSL), the organization responsible
for drafting UCITA and promulgating it to the state legislatures. Without
those amendments, the working group said it would have even more problems
with UCITA.

The ABA panel's top 10 concerns about UCITA dovetail with many of my own:
electronic self-help; the scope issues that would allow manufacturers to
sell goods with any embedded software under UCITA's rules; the ability of
UCITA to undercut state laws concerning consumer protection and
unfair/deceptive practices; license-based prohibitions on criticism of
software; the lack of economic justification in the Web era for licensors
to hide their licenses terms before payment; and the way the draft
committee's latest free software amendment actually hurts open-source
developers while potentially helping commercial software publishers.

At the very top of the ABA's working group's list of concerns was the issue
of UCITA's "clarity and ease-of-use." UCITA opponents have always
complained that the draft is obtuse (with proponents usually countering
that just means the opponents are too stupid to live and should go away and
let the proponents interpret UCITA for the world.) The working group
members were struck by how they, a prestigious group of experienced
attorneys, couldn't make sense of it either. After many hours of intensive
"tutorials," presentations, and debates, they still found themselves
getting lost in the draft's maze of convoluted definitions, intricate cross
references, and ambiguous phrasing.

"Time and again when the Working Group attempted to consider the
substantive merits of a UCITA concept or provision, the Group had first to
parse through the language word by word and clause by clause, only to
realize, in the end, that the individual members of the group could not
agree on what the particular section said or meant," the ABA working
group's report read. "Accordingly, the Working Group is concerned that
UCITA, as presently drafted, would not achieve the principal objective that
a uniform law is expected to achieve, namely, the establishment of a high
level of clarity and certainty in a particular area of law."

After reading the ABA report, I'll confess that I really thought UCITA was
finished, at least in this form. Surely the ABA's refusal to endorse UCITA
would force NCCUSL to withdraw it. After all, the ABA isn't the first
prestigious organization to find that it can't stomach UCITA. (The American
Law Institute [ALI] "stepped away" from the drafting project in 1999,
preventing NCCUSL from making what was then UCC Article 2B part of the
Uniform Commercial Code.) With the ABA joining the state attorneys general
in lambasting it, how could NCCUSL continue to pretend that UCITA is
serving its mission of promoting uniformity in state laws?

I should have known better. NCCUSL has made no move to withdraw UCITA, and
officially the only changes it is contemplating are the amendments that the
drafting committee published in December. But statements made by NCCUSL
officials in some public forums hint at their actual plan. It would seem
the standby UCITA drafting committee is preparing a limited set of
additional amendments to respond, or at least appear to respond, to the ABA
report. No public meetings of the drafting committee are scheduled before
the NCCUSL annual meeting in August, however, so these amendments will be
concocted by UCITA's drafters and presented only weeks before the
commissioners vote on them. No doubt NCCUSL will declare yet again that its
"open process" has fixed UCITA to everyone's satisfaction.

Does this sound familiar? In 1999, just when ALI's dislike of UCC 2B had
doomed it, NCCUSL rushed out the original draft of UCITA just a few months
before it was adopted at the annual meeting. That's how this process works.
It's when you think the beast is dead that it's at its most dangerous.


Ed Foster is InfoWorld's reader advocate. Contact him at gripe@infoworld.com.