Buy Now, Regret it Later?

How willing would you be to purchase something—and only THEN find out exactly what you bought? You'd better be very willing, if you intend to buy any software after a proposed new law passes.

You might have read, at one point, the license that comes with each piece of new commercial software. The license is the page or two in every box of software that basically says, "We don't guarantee that this software does anything, and you agree not to sue us if you find that it actually DOES something, you start depending on it doing that something, and then it stops doing it."

Over the years, software licenses have contained some obnoxious material. Vendors have attempted to restrict First Amendment rights (for years McAfee tried to restrain you from commenting on VirusScan in print), disavow their advertising and documentation (many licenses simply say that if the documentation or the vendor's sales force says that the software can do something and it can't, tough luck), and prohibit you from reselling the software—so when you sell your used computer, you'd better format that hard disk first. Perhaps the most pernicious aspect of software licenses is that, in general, you don't get to see them until after you've purchased the software. These licenses are contracts with what are called "post-sale disclosure of terms."

The anti-customer nature of some of these licenses isn't just annoying; it can be dangerous. A construction company recently discovered that the job-costing software they'd used to submit a bid had added wrong and delivered a cost estimate that was $2 million too small. Unfortunately, the company found out about this bug only after it won the job! The construction company tried to sue the software company over the damage that the software bug caused, but couldn't; the judge pointed out a clause in the software's license that said the user agreed not to sue the software company for any collateral damages. That kind of court ruling is almost unheard of today, but it'll become the law of the land if the proposed Uniform Computer Information Transaction Act (UCITA) passes.

Despite that recent court case, no one's sure whether these "surprise!" licenses are enforceable. But the software industry has applied pressure to a group of lawyers called the National Conference of Commissioners on Uniform State Law (NCCUSL) and had them create UCITA, a model law they will soon send to all 50 states. NCCUSL has a lot of credibility with state legislatures and, on average, every law that NCCUSL offers gets passed by about half of the states without much debate. Unfortunately, just yesterday, 29 June 1999, the NCCUSL membership voted to send UCITA to the state houses. That's bad news, terrible news in fact, but the story's not over yet—it still must be passed at your state's capitol, and you can help stop it.

There's nothing wrong with putting ridiculous, anti-customer clauses in a contract, provided the customer gets to see this contract beforehand. If you ask me to mow your lawn and I say I'll do it for $1 million, then I'm asking something unreasonable. But I'm asking before you've signed on the dotted line. Without much more commitment, you can just laugh and walk away. But a software license is sealed inside the software box, and you can't see it until after you buy the software. This approach is sad because you can't comparison-shop to find a piece of software with a better set of guarantees. The troublesome part of UCITA—well, actually, one of the troublesome parts about UCITA—is that it enshrines in law the idea of post-sale contract disclosure.

On a recent edition of the radio show Beyond Computers, Marc Nebergal, one of the software lawyers influential in drafting UCITA, explained that post-sale disclosure wasn't important. "Very few customers compare software based on the warranty provisions," he said. "The market just doesn't care. But you can go home and read the license at home rather than standing around the store reading the license."

Sure, that's plenty more convenient, Marc. I get to drive to the store, stand in line to buy the package, drive home, open up the license and read it in the comfort of my own home, then decide that the license is objectionable, get back in the car, drive back to the store, and wait in a longer line to get a refund. That's far more convenient than just reading the license in the store, shaking my head, and putting the software back on the shelf.

Still not troubled by all this? Then imagine shelling out $700 for an upgrade to Windows 2000 Server (Win2K Server), only to open the box and find out that it's a license to use the software for only 1 year. That's the sort of information that you'd want to know BEFORE buying.

You can find out more about UCITA at You can find out how to ask your state governor and representatives to keep it out of the law books by visiting that site as well. I urge all readers to find a few minutes to generate and send a letter to their representatives opposing this virulently anticonsumer law.

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